only legislature has designated respondents and sexually violent persons committing proceedings as the worst of the worst when it comes to sex offenders is against this backdrop that johnny butler came to trial by jury on august twenty fifth two thousand and eleven my first issue the trial court abused its discretion when it limited mr butler to asking prospective jurors whether they could be fair knowing about one sexually violent offense instead of multiple in this case the accepted mr butler's proposed question which was can you be fair knowing that mr butler had been convicted of a sexually violent offense and three separate occasions what was the trunk your reasoning or limiting the specifically to the facts or the law during this portion of the proceedings that is the rule your head subsequently correct however this was not the facts specific question this was simply a question i had the minimal amount of detail necessary to satisfy the purposes of my de which is that there is a reasonable assurance that central bias and prejudice could be detected from the jury so that it would be our position that the question asked was insufficient to detect that bias and prejudice there is no individuals though that fair if he was convicted of an offense versus three offense that's correct he's saying if there's a class of jersey out there that wouldn't be biased against someone who was convicted of one offense but would have been would have been biased  difference between a sex offender in general and someone who commits multiple offenses which should be sufficient to form the basis for a diagnosis of her feeling not otherwise specified so because if the legislature has recognized it in we know that se offenses are potentially very inflammatory and very visceral the the respondent in this proceeding where there's going to be multiple they're going to be graphically exposed that that would be a different reaction from a jerk rather than jury in order to obtain really your honor the the standard with respect to of why dear is whether there was a reasonable assurance created to guarantee that bias and prejudice was was detected and here i don't  to go in any way feel that there was some sort by your honor the record is silent with respect to an actual an indication all we have is the fact that forty percent so they can be for knowing of only one oh but i just i'm just curious does the case law suggest that you have to establish here that there was a bias jury in order to obtain relief based on this here if it i done this in cases with gangs abortion and the insanity defense similarly here we have a situation where not only did the sexual offenses go to the state's case in both the second and third element because  in terms of the first issue that you present though the abuse of discretion and what is the standard sort of general language for the standard of review abuse of discretion if you translate shit whether the trial court in the conduct of the trial court during the inquiry is required where an issue or a matter is going to be inflammatory and graphically exposed to the jury throughout trial in that case this court found that it was not an abuse of discretion for the trial court to a permit defense counsel to show a turn to my second issue that the state improperly argued basis of opinion testimony as substantive evidence during closing argument in the supposed case there was a motion in limine a that was granted which precluded the state from using the basis of opinion testimony improperly it is well established that under and what was it improperly or was the motion to not argue the previous convictions for sexually viol state argued in closing argument by starting off with the details of the convictions and the arrest outside the context of any discussion of the elements that it had to prove the state started o right so it's not admissible to prove that these attacks happened in this particular way i read that was initially case anyway so i'm not sure that i understand the argument that the state was using that to prove the  but by arguing it as if it were true as if it was substantive evidence that had been admitted during trial the state was inflaming the passions of the jury in the end it also is in taking into the context of the entire closing argument where the state starts off going through the effect the complete offending history when they come to their liking in their testimony they did have to indicate to the jury that part of the basis of the opinion was just history of committing prior absolutely or and that is entirely proper are so it's kind of a fine line to say that the state was arguing this is substantive evidence when it is  was the basis of the opinion of the doctors true to your honor but we have this we have that fine line being crossed here where well that's the issue and the court i think on each occasion w cures the instructions given by the court we do presume that your honor but there have been cases for example in the gerardi case where because it was such an inflammatory issue and it was a sex offense that the jurors weren't necessarily presume to follow law under that circumstances which is the only reason that i put forth before the before this court the quote from the state about the argument just to just to show really how prejudicial and inflammatory the argument during closing was and so the state went through all the details and then came finally and said we have three propositions to first is a conviction they went through that in about one paragraph for the record then they moved on to the mental disorder and that substantial probability to reoffend they didn't talk about the details of th convictions in the context of the expert's opinion which is really part of the reason that this is so inflammatory and prejudicial to mr bell or not the fact that at the first testify to information that they had every right to testify to rely upon it's the way that the state use the evidence before the jury all right but the doctors pretty much echoed everything that they said in their answer testimony didn't they they did in your honor and they're repeating it over and well i mean the doctors did testify to essentially those facts so the jury was going to hear this in the time text which in which it was given now is this an error if that is and they are subject to the public here rule this would not be harmless error because there were there was not overwhelming evidence against mr butler in this case with respect to the fact that he had a mental disorder and whether that mental disorder met he was substantially probable to realize that when you say that it wasn't overwhelming there were two tractors the test fight each one we would submit substantially weakened the state's case and we have a situation where both the doctors testified to the fact that the actual real instruments used were only moderately accurate and also we have the fact that dr branson was of three hundred of the brain illinois sick correct that's correct or do you think that either of the doctors they hacked off their opinion in this case based on the cross examination now that they backed off their opinion but disposition specifically what arrangements are necessary to ensure the respondent will dissipate in treatment in the community or whether it's more appropriate to be to do to do treatment in a secure facility trial for it in this case gran good morning your honor smith fisa court and the pain from the attorney general's office on behalf of the people i would like to be again with the dispositional hearing issue if i could as an initial matter i'd like to point out that the first time the statutory right to notice and when the hearing would take place under the act and that that is set forth in section twenty five of the act that's not an argument that was raised in the op at the argument that the first one that the court had a part is that in this case the respondent did not state that he wanted to present a witness for dispositional hearing he didn't have a witness what he asked for was a continuance of the hearing for the purposes of a supplemental evaluation but is it correct though of bach indicated that there was a motion in limine a that the stay not to mention any possibility of a disposition order involving conditional release was if presented before the the trial yet specifically with respect to we shouldn't be telling the jury you know if you commit then this person is going to be sent to an institution that kind of statement is inappropriate for the jury but there was there were a request for this appointment of another doctor or psychologist to give an opinion about a conditional release you know the the request was for a doctor to be appointed for the purposes of the trial and the dispositional i'm sorry adjudicatory phase of the trial and that was done i don't believe there was deposition of that expert because it appeared the respondent didn't intend to call that expert trial and so as we sit here today the record is completely devoid of what that expert's opinions are what they would have said there is no request you know can we present this expert for purposes of disposition the only request that was made was for a supplemental of valuation and the record is is clear respondent acknowledged as in on page forty five of his opening brief that the only evidence that was sought to be presented was evidence to be obtained through a supplemental evaluation and the record at the time of the dispositional hearing bears that out as well the statement was we will be asking to have an evaluation of mr butler so we may present that evidence to the court and so it appears that all parties understood that this was a quest for a continuance of the proceedings for purposes of supplemental ability which the court in fields distinguish the facts in that case from winter halter and title back where the respondent did not ask to present testimony that would have been independent of supplemental evaluation fields that's the term in that given the respondents request to present a witness at the dispositional hearing the interests of justice demanded a continuance if only for a day but this case is not fields it i mean isn't it a bait and switch i would disagree there's there's two points on this one we would disagree that there was that response prevented from presenting that testimony if at the time of the dispositional hearing they had because there's three factors that are relevant to disposition under the act these are the three statutory factors the first is the nature and circumstances of the behavior that formed the basis of the allegation in the petition there was testimony all over the record on that point that was what were the crimes what were the behaviors that led to the convictions and ultimately to the petition in this case and the risk cross examination on that point which is one of the statutory factors the second is the person's mental history and present mental condition again that was what the trial was all about what are the diagnoses what does mr butler suffer from how does it affect his impulse control what is his present mental condition at the time that was testified to and there is cross examination on that the third and final factor is what arrangements are available to ensure that the person has access to and will participate in necessary treatment and there been a six month review disposition yes and yes with that render this issue moot if there's been a hearing and a finding one where the other or you don't know and i'm not i don't expect you to answer i just throwin the people can see that there is a hearing requirement but the question is when does that hearing take place well says the best hearing this as soon as practicable yes and the people would submit that the default language oh i'm sorry i thought we go ahead we may be in a different position and if there was evidence here that there was a witness if i could meet i want to get back at you in the process of telling us the three factors that are supposed to be trip are you saying that the most eliminate didn't prevent them from questioning here experts about whether there were conditional release arrangements they could have been made for him to participate in happened here is both experts testified that respondent head very briefly engaged in treatment in one nine hundred eighty nine one nine hundred ninety you defended there after he was returned to i d e o c custody where he declined to participate in the treatment that was offered to him when he entered t h s custody he was again off for treatment he was residing in a facility that was designed to give treatment to sex offenders he refused to participate and so what i think happened here is the trial court said i don't lack sufficient information on this factor because if he's refusing to participate in treatment in a residential facility how do i have any assurance that he's going to participate in the community well let me ask you this three factors that all goes to whether he's a candidate for conditional release his present mental condition is impulse control his history those are all factors and so i know maybe it sounds like i'm splitting hairs but they couldn't ask you know is there some place they could lose their halfway house he could live it they couldn't ask that question or if they have to be right and the juries i think did was theirs was their testimony specifically related to whether or not he was candidate for the release or subject to commitment by either of those to doctors there was no additional testimony following the verdict and this goes i think to a point that came up  n my opponent's argument when it goes to prejudice there was the wrist no witness that was offered and this is another way that this case differs from fields because fields relied at least in part upon a forfeiture determination  footnote four of the fields opinion the court ruled that the people had forfeited their harmlessness and prejudiced argument by failing to adequately support it with legal authority and in fact fields conducted no prejudice analysis whatsoever and i think prejudice is really the crux of this case we can't say with the record before us whether the outcome of the disposition would have been any different had respondent presented additional evidence what did the court specifically say when it and t order that he committed if it is summer break well in summary the court did say loosely that there's not a right to a hearing or an immediate hearing i misspoke and then talks about finer and tittle back but and then it discussed the factors under section forty two of the act that it found supported commitment in this case so the court made  finding that the facts and the evidence supported commit gets in specifically found that he did not lack sufficient information at that point to make the disposition and even the definition that respondent provided in his opening brief doesn't say that a hearing requires evidence to be presented especially where none is offered it as hearing may be the point where the court looks at the evidence and says i know enough at this point i don't need to order a supplemental valuation then that's what happened where you can give it to wasn't due process i think two points on the air are one there was an opportunity and when given that opportunity respondent asked for a supplemental evaluation rather than to present a witness independent of a supplemental valuation and the second point is that a due process challenge is not before this court due process was mentioned in passing in the reply pretty all that was raised in the opening brief was a statutory challenge saying we're entitled to a hearing under section forty of the artist what  the opportunity you heard or seen or where none is offered where no i didn't say offered i think a hearing can be of the court just saying i've heard what took place at trial and this is what i'm ruling i think we would beat this would be a very different case if any evidence had been offered and we don't we have no idea what evidence could have been offered and it was incumbent to converse on it to make the proper and if we're just i think responder was focusing on the transcript at the time of the disposition but that's not the only opportunity that they had to make their record their little say how will it what about the poster almost was raising a post from motion that that there was a witness that they wanted to witness what this witness his name was what this witness could have possibly said to have changed the outcome of this trial and and what do you interpret that the language  dispositional phase right back and that's not to say that if the respondent had a witness present that the court would have complete discretion to deny them that opportunity that's to say we don't need any supplemental valuation there's no reason to delay so we're doing dispositional hearing now and it's really important i think to put this in the context of what are these proceedings this is not a criminal proceeding it's a mental health are sitting in the issue it any mental health proceeding is present mental state of the respondent if the parties often spend years trying to get the experts opinions up to date there's often multiple iterations of depositions and expert report to to reach a point where everyone can say this is the present mental condition i think we should move on to your other arguments because the time and let's talk about the arguments of the attorneys regarding the criminal acts and counsels suggestion that they were used here and substantive evidence they were argued improperly or the jury so that testimony they were again instructed following closing arguments and again in writing additionally they were instructed that opening statements and closing arguments are not evidence and are not to be considered as such but the way they were argued that nobody the judge didn't  context of this is what the experts relied upon and judge mchale was was very you know clear is all are you saying that the if you if you look at the entirety of the opening remarks closing arguments that they were used that were looking for a pattern of sexual deviant behavior om repeatedly judge mchale said i was counting he said i counted throughout the closing argument how many times the prosecutors returned to this notion of this is what the experts relied on he was keenly aware of it and he found that it was proper and it had comported with the orders and limiting and and while you know some of the statements that respondent has pointed out when taken out of context do sound prejudicial they were highly relevant to points that were contested it trial and to a certain extent that respondent head open the door for he claimed for example in his interview with dr squire that his one hundred seventy five offense which was an attempt rape was consensual he claimed that his nine hundred ninety seven offense was a situation where he was attacked by a prostitute and he had to defend himself and all throughout the trial respondent focused on was the bases for the expert's opinion reasonable was that it reasonable for them to rely on these things and so the specific portions of his underlying crimes that made it reasonable for the experts to reject mr butler's version of events and t instead accept the version of of facts in the criminal case files was highly relevant to the jury you know the victims were screaming third parties had to intercede he told them that he was going to rape them that was all relevant to the issues that were before the jury and and as your honour's noted that was the context in which it was presented well that's what you said i was i was if right if this you know a review of the from the beginning to the end of the opening and closing would show that they were placed pacifically in the context of the bases or the doctor's indians in this case yes your honor that's our position well i'm looking into the other issue sure do you think  then that the judge say if you hear that he's only if he's been convicted of sexually violent offense i will that will be that prevents you from being fair in this case so you have t still claim that the state is over arguing the facts of the offense and then the judge having said to the respondent i'm going to let you go into th pierce the jurors that are going to hear this case that if if they are told at the outset you know can you be clear in this case if you learn that this particular responded h to to allow respondent to explore bias without reviewing the evidence in the case and and there's two principles i think it play here one when you're talking about what your question that relates to something like prior convictions or bases of opinion testimony that's going to be addressed in the court's instructions to the jury on the proper evaluation of the evidence the court does not abuse its discretion by prohibiting that that's people be branded and illinois supreme court ruled two thirty four that the proper treatment of these prior convictions was addressed in limiting instructions to the jury and to ask them how will you consider this evidence before you instruct them on how to consider the evidence is is going to be you know read to difficulty impaneling a jury and the second point is that help but we don't ever want to lose that  we have no reason to believe none of the article cited by respondent suggest that jers are more biased towards someone with three sexual offenses versus one and i think this case is really it's people be jackson which the court will ride upon in people be jackson the defendant in that case wanted to hear he was on trial for multiple murders he wanted to ask the jury would you were always vote for the death penalty if a defendant were convicted of multiple murders and the court said no that's previewing the evidence to the jury well how would you prefer the evidence if you simply said that they responded yes more than one conviction for sexually violent offense for in this particular case the responded yes three sexually violent offenses in this history and would you be able to you know be fair and impartial in reaching a decision in this case with that in mind i think it's previewing the evidence because what the experts then come in and testify to is i considered these instances isn't previewing the evidence that can't use a death or the fact that the judge told the jury that he has pull from the jury whether they could be fair when they find out that there are three different offenses that form the basis of it but the question is whether the jury that was impaneled was biased in this case well the question was the denial of that question did it leave lead to you know fording the selection of an impartial jury and i don't think that that prejudiced standard has been met in this case  we we can't say that the denial of a more spac fact specific inquiry for did the selection of the jury and on how many veneer persons brought to the court when do you recall i don't know the exact number but i would agree with respondents statement that approximately forty percent indicated that they would be biased towards sex offenders forty percent or forty individuals forty percent to forty percent of the number of people were brought up ye think he really was just trying to follow jackson and jackson is where the illinois supreme court said that's where the line is you can explore this issue in all the cases that respondent relies upon where the court found that the questioning was insufficient it was a situation where the court completely prohibited questioning about an entire issue for example gang membership were not allowing any questions about king or ship that's not the case here and that's not that's not the case in any other case where the questions were found insufficient they were allowed to explore the issue here the court was worried that the jury was going to fan want to have follow up questions you know what exactly were the convictions i don't know if i can be impartial not knowing what these three convictions were he was trying to head that of those questions raised the good people they want to know it it appears that that didn't come to fruition but  i think it's a line drying there's there's no evidence here that and that a biased jury was actually impaneled in this case is i think indistinguishable from facts so you believe have a few points on her bottle with respect to the dispositional hearing respond it did not move to adjourn the hearing the record does not reflect that there was a request to adjourn the hearing the record says we will be asking to have a dispositional hearing so two very different things second the motion eliminate which i have here specifically says that any testimony questions that might infer apply any information about commitment options such as  respect to winter winter halter and title back those cases presented an opportunity for the respondent to to argue or an opportunity present evidence because there wasn't a motion in limine a situation that we have here and there spun it was able to argue that those cases are different than mr butler scase what was the argument the counsel beat to the judge when there was this request for what exactly did he or she say he said for the respondent wish to reexamine the experts with regard to this position was there anything in his comments that day or in the most from the trial that you know you something they want to do there the indication was just that they asked for it and it was very clear that the trial court was not going to grant a dispositional hearing when he repeatedly says he does not have a right to distributional hearing so at that point there was no you want to have an expert which would testify in the context of disposition what arrangements could be necessary for care and treatment by the whether that opportunity to really evaluate that issue and not just evaluate this you with respect to his mental disorder and his likelihood of reoffending which is what the experts did that trial you are aware as well that there is a six month date right there see here in the  place so what happened in this case you know whether something changed in the six months where there was testimony that he's subject to he should be conditionally released was there anything like that presented  that he is still in a position because of the history that he would not be a candidate for  subsequent six month period i don't see how this is still on because if he's not a candidate six months afterwards how would he have been a candidate or is it even a live issue now did here is if it really abused its discretion and it denied especially guaranteed right to a hearing in any case the guest the civil case the mental health proceeding but what is really at stake is indefinite involuntary extended incarceration