of proof beyond a reasonable doubt that mr gavin has a current mental disorder and that he is dangerous because a mental disorder makes him substantially probable if you know that sexual violence unless you honour's have questions about mr gavin's alternative argument i'd like to focus my argument this morning on this reasonable doubt argument specifically three points one of the state failed to prove causation between a mental disorder  mental disorder under the s c i'd like begin with that causation argument beginning with the principle that was articulated sung versus the tell which is that correlation is hardly synonymous with positive at trial no one offered an opinion that mr gavin has a mental disorder that makes him substantially probable or that creates a substantial probability the only opinion offered was that he is substantially prob act uses those words makes or creates to indicate that that proof of causation is required and what the state did offer trial was merely to contemporaneous conclusion assuming of course mr gavin does have a mental disorder and is substantially probable the state's case relies on those two things being temporariness and they did not offer testimony that actually link them together as one coming from the other and if we look to the reasoning and some verses to tell we know that that is not sufficient for some reason but contemporaneous and this is problematic for two specific reasons st of all as i said correlation is not positive secondly if the trier of fact is left to assume causation from two contemporaneous things that puts the burden on mr gavin to disprove that i was asian in a case where he does not have a burden of proof that burden rests entirely on the state and that burden is proof beyond a reasonable doubt so on that basis alone this court can reverse out right and should reverse our brain because the state failed to meet its burden but failing that point that brings me to my nd issue i'd like to talk about which is that the state failed to prove that mr gavin is dangerous because mental disorder makes him substantially probable to re a fan and given that substantially problem is much more likely than not which must mean much more than fifty percent the state failed to meet its burden on this only as well the testimony at trial are you asking us to substitute our judgment for the facts judgment with regard to that issue no your honor certainly the standard of review is deferential but that standard doesn't come to us considering the entire record and not one side one of the other abbotts yours the state just the two other so the judge having heard that testimony and listened to what they had to say made a decision based upon what he heard how can we then decided something different from the judgment based upon the fact that it's expert testimony and he believed the expert testimony of the state as opposed to drawn i would say that when the trier of fact hears under budget testimony from a defense expert that is not countered by anything the state's experts have said previously the circuit court can't simply disregard it and that's based on a judge they can weigh it in and then the way he gives it that may not be very right we can't we lay the evidence now just because somebody says something isn't right but it doesn't mean you have to believe right outcome was perfect given the testimony and the testimony doesn't rise to the level of proof beyond a reasonable doubt given that really what this comes down to are two distinct things the actuarial risk assessments that were done and the dynamic respect which are both cases have said that those are fine factors to be considered right i agree with that but if you're expert to consider one of those  absolutely and i agree with that issue is in this case they weren't sufficient because if we consider that much more likely than not it's much more than fifty percent probability of actual aerials that say a person with m is trying to flesh out what that phrase means and given that case law says preponderance of the evidence is more probable than not or likely than not a majority of the evidence if much if if this standard is much more likely than not and preponderance is more than fifty percent much more likely than not must be more than that but why is there in the what's in the records which show that this judge and  cannot dispute fact that none of us can predict the future and that's why the best we have are these actual aerials these dynamic risk factors and if the risk factors can't be quantified and the actuarial say he's far more reasonable doubt but failing that the state and this is my rd point the state nevertheless failed to prove that mr gavin is a current mental disorder today and that's really this entire issue is best summed up requires speculate and there's a number of ways in which the state's witnesses speculated beginning with that claim that other specified her field disorder is chronic and i fall into this based upon their experience as expert both of them said and i would suggest your honor that an occasional we're talking about expert testimony where the standard under the rules of evidence is they can rely on things that are reasonably relied upon their anecdotal experience when there's no scientific literature to support that it's not something they came to believe especially when dr abbott met their testimony by saying there's no research on this does not exist moby doesn't exist there's nothing that they can relate so we're in an area where experience is important and apparently for whatever reasons this hasn't been studied in that regard so you're saying that the just because there's never been any study of the can't use experience has to make sense well your honor i think what i'm suggesting is we're in an area where if indeed mr gadkari adamant disorder in the seventies and eighties to get to today soley on the basis of the claim that it's a product a lifelong in their personal anecdotal experience that's really no different than speculation there's lots of there personally and i don't know it's what they have come to believe they stand there many your career and there is nothing in this record more i think the fact that there isn't any research or literature that's been done on the topic to substantiate that is reason enough to doubt it but it also goes  we have to throw up our hands i think there are two responses that are st of all there were other points of their testimony where they they engaged in additional speculation where they said he could be having these tho thoughts are just could be running rampant there was no actual testimony or evidence that affirmatively backs up that mr gavin has a mental disorder today and i think that's really the crucial distinction here that this isn't about what was happening thirty years ago or thirty five years ago it's what's happening today that's what the act contemplating her mental disorder and what we have in terms of evidence mental disorder is essentially we have a handful of rule violation t f that weren't sexual misconduct that really involved it aside from him pushing a staff member they involved know other people and we have the doctor saying well he must be having these urges and i would suggest your honour's of that is precisely what proof beyond a reasonable doubt is supposed to protect against supposed to protect against speculative evidence against people guessing against the absence of evidence for example the causation element mr gavin's current mental state is unknown because the state couldn't provide evidence of brief grant him a trial one to substitute this court's assessment of the credibility of the experts for that of the trier of fact in this case does come down to a battle of the experts it comes down to a battle of two experts on behalf of the state current mental state but decades old conduct was a position she was looking at the current mental state that she was relying on the past conduct to inform her but that was easier decades ago i think you would have to believe i mean the one thing  illness but they're not testify that there's nothing that can be done all three x heard said he can reduce his probability to reoffend by engaging in sex offender treatment he's beneforti of that opportunity the entire time he's been in the team he's not availed themselves of that and they've explained why that's important but behaviors in the past are significant understanding his mental processes seeds but they've also found present evidence that he continues to have cognitive distortions the types of distortions that would be addressed in the treatment setting with sex offenders that they could challenge his views of in a lot of cases he has tried to justify his behavior by you know the victim was asking for it type reasoning that's the sort of thing that needs to be challenged and he needs to confront and that's what the sex offender treatment is geared towards i do agree that the majority of his behavior did occur in the past it has occurred when he's been released from prison did testify that currently has this disorder they testified how this order works they were certainly cause damage on this point well isn't his behavior from front to pass but they really highlighted the aspects of facility is to prevent sex sex offenders from engaging in further sex offenses and it's only in that setting that he seems to have been able to control his behavior there have continued to be a little violations however and for example he has that had possession of massive quantities of pornography and this was one basis for the experts to conclude that he continues to have very strong urges he is continuing to violate the  rules with respect to that he's even said you know he has been given treatment he's admitted that he has sort of an addiction to pornography these are all factors that the experts looked at in assessing whether even other behaviors occurred in the past we can infer they continue to suffer from the same impulses and such that he would have a substantial probability of be offending if released again as he has in the past every time he's been released  and i would just emphasize it's not the fact that he has committed multiple sex offenses but it is the circumstances of those offenses that are in particular what the experts relied on here and there have been a couple of occasions where he has been confronted with police officers or correctional officers in the middle of a giving in especially violent attack and he has been unable to stop himself i mean the description of one of the crimes is that police had to go up to him and literally hit him over the head with their guns to get him to stop the sexual assault that was in progress and there was also an incident and i do see where he attacked the woman and again the correctional officers tried to intervene but he didn't have the sort of control or the awareness to south even when confronted with those circumstances i did want to touch briefly on the issue because i think it's important to know that defendant is leaving something out when he says there is a mental disorder and there's just a substantial probability because it's within the definition of the mental disorder itself that he's predisposed to engage in future acts of sexual violence that's not only part of implicit in the expert testimony that he does have a mental disorder but it was laid out in detail so dr white old directly testified she was after these conditions they've identified othe disorder the basis of this diagnosis is that he has these very strong urges trying to gauge in this sort of deviant behavior where he's disregarding the rights of these women who are not consenting but yet he is so driven to indeed in this that he's continuing to do so and i did want to distinguish the fact that this is inherent in the disorder is really what i puts into perspective their continued reliance on the huston case which is the civil case for causation that they rely on in that case it was just eroded objection cause an infection and there was no a deathly and it it is to some extent informative of this question however because there it was not inherent in the steroid injection that infection follow here it's inherent in the fact that he has this mental disorder that he's predisposed to engage in these acts then that testimony based on that predisposition how likely is it that he will reoffend that testimony then takes into account other factors including the actuarial in addition to the dynamic r and i did just want such very briefly on the request that this court quantify the substantial probability the court's noted that that is not the law in illinois and now and that's true in those cases are well reasoned but it's also supported by the testimony in this case the state's expert asked him you just give a number to the probability that he will reoffend and they both said no that's not an appropriate analysis in this field where you're looking at human behavior it's not something you can put a number on so and i would i would urge the court not to risk over emphasizing the actuarial instruments here which are just a piece of the analysis i believe according to respond as counsel dr abbott said that they can overestimate wris said as well that it can it can underestimate risk because it only looks action dictions for subsequent offenses so these are really just a starting point these numbers are and then it the court has to take but the experts at the port have to take a holistic approach at looking at based on that number do i go up or do i go down based on the circumstances and they've identified the dynamic factors that really increase the risk here beyond the baseline number that actuarial was assign don't show that it will well they were hesitant i think what your honour's referring to is they were hesitant to try to describe it his mental process is sort of in the absence of evidence of what is going on but they were explaining why they can nevertheless even without knowing exactly what is taking place in his mind they can nevertheless infer that he does continue to suffer from these disorders and does have a high risk every offending and those would be the cognitive distortions that i mentioned and the continuing unwillingness to accept responsibility really for his actions and in the felting of these women and that they were unwilling to speculate as to whether what is exactly going on in his in his own mind but they did point to that pornography possession of evidence that he continues to have  you my colleagues in the state mentioned mr davis were called cognitive distortions that were based on the statements he had made about his offenses and the testimony at trial was that the statements he had made about those offenses were to dr abbott when dr abbott asked him to look back in time retro reflexive week and explain what his thinking was at the time and that's crucial because it doesn't get us to today and my colleague just said that the experts were trying to describe in the absence of evidence what was going on and that's precisely the point here there isn't evidence of mental disorder today i don't know if there's another way to do it but there are a couple crucial points on that topic st of all my colleague said that mr gavin has only stop committing sexual misconduct since he's been in the t that's belied by the record mr gavin was not admitted to the t v up until two thousand and six he has not had an act of sexual misconduct since one thousand nine hundred and ninety one and that did include time when he was out in the community in the mid ninety's but on top of that in the c d f he's free to walk around he's not shackled he's free to roam the halls as he pleases to go and exercise or do whatever else he might be doing and yet he has not engaged in the sort of behaviors that he did three thousand and thirty five years ago maybe forty years ago and that reflects that he does not have a mental disorder today and if there aren't those behaviors to look at and there aren't statements that he has a current you know something saying this is how i feel today this is how these are the thoughts i'm having today then the state is exactly right that that is the absence of evidence and the last point i'd like to touch on is the causation issue too except the state's argument that the nd element of the as yet somehow also inherently includes that causation component that would read sections of the rd element into nonexistence that language that a person is dangerous because mental disorder makes them substantially probable or creates a substantial  meaningless and redundant and case law says that statutory provision requires that we look at the statute as it's written and i think they don't read parts of it into all testified that mr gavin is dangerous because of mental disorders a sense of family problems the event that was not the president it was only that it is substantially probable and if the state real cure for that and we also have heard testimony that he has not taken any done any treatment for it so if we know that he has a mental disorder and he hasn't done any treatment are we sort of stuck trying to figure acted out on it before he's acted out on it in controlled environments he's acted out on it in front of prison guards and security guards this is serious a serious concern for us and that is recognised as a mental illness and there is recognised as something for which there is treatment but can't be it's chronic it can't be cured and we've seen evidence that he has continued to act out and ways that demonstrate this even in controlled environments and even when there policemen standing around with guns that sounds very dangerous to me so you're telling me he said painter and i'm saying  having a hard time saying well i'm the controlled environment no your honor certainly there were acts of sexual misconduct that took place in the late eighty's early ninety's while he was in custody but since one thousand and one there haven't been behavior it's something else that's changed his behavior and that really undermines the claim of the state's experts of this is product and life form he has an engaging these behaviors he hasn't done so since one thousand name one and the issue is does he have a parent mental disorder today no one's denying that his past crimes are reprehensible or that we should not find serious but the question is is he still dangerous today as a sixty one year old man and the record doesn't support that he is dangerous today or that he has a mental disorder to