it please the court counsel you know what a pleasure it is to be in this venue that is so much different not as formal but well better attended than the traditional trappings that we have down in ottawa and it's a little bit uncomfortable for me as a result because one of the first things they're going to hear me say is something that they're probably never going to hear an attorney say ever again in their lives and here goes i made an error i made a mistake with regard to the statutory burden of proof in my opening breed and what better place to come and do this and make that confession than a christian brothers university in this case was tried and both the state's attorney's office and the attorney who represented mr snapped at the trial court level using the burden of proof beyond a reasonable doubt they were mistaken they mistakenly informed the judge the judge mistakenly applied the burden of beyond a reasonable doubt as my learned opponent has pointed out on june first of two thousand and six the statutory burden of proof changed from beyond a reasonable doubt to was reviewed by the fifth district appellate court and they found that that standard met constitutional due process mustered and that's the case of people vs predator for you why yes and i and and again i was going to say that i disagree with the finding and the crack in that people versus greg case and i maintain my position that was set forth in my brief and i don't want to go a lot into that but trainer and it's progeny his time and time again at times when the statute was silent with regard to what the burden of proof is would be has said beyond a reasonable doubt and the statutes in the or the  court i understand that but i thought that it was my obligation who advised this court that i was aware of that and i presume that you folks were but you never know if you're to be commended ok yeah and depending on what happens with that standard i'd have also view that the you know the the issue of waiver by stipulation or failure to object and i think that's a valid point too but i don't even think you have to go there to decide this case you need that release mr snap and some technicality of waiver you need to order is at least conditional release because no matter what standard we have in this case i believe the evidence was wanting and lacking with regard to whether the state proved he should still be confined  there were four potential issues that could have been tried in a court only one of them was in this sexually dangerous persons commitment in a case the issue of mental disorder greater than one here was not contested was not litigated the testimony in the evidence was that he that mr snap suffers from pedophilia that he did and he does the criminal propensities for the commission of sexual offenses was not contested by trial counsel in the lower court by his history establishes that demonstrated propensities towards acts of sexual assault or acts of sexual molestation of children again that is a matter of record from his history and weren't challenge but those are kind of the factors for the most part to look backward and this is after all a recovery proceeding has he recovered mr snout has been confined and undergoing treatment for ten years and that brings us to the issue the one that is contested has he recovered through his treatment for these past years and the standard in that particular case and in every case is set forth by our own or supreme court masterson is that there must be in order to keep him confined there must be an explicit finding that it is substantially probable that the defendant will engage in sex offenses in the future if not confine substantially probable to commit sex offenses in the future if not and find out what the substantially probable mean fortunately we have a case to tells us and it's been often cited and that's in that reading in read the detention of hayes and that was sexually violent persons commitment and case slightly different but still using the same standard and that is substantially probable means much more likely than  submit to you folks that on a continuum of one to one hundred that much more likely than not has to substantially exceed fifty percent or the words are meaningless that brings us to the case of bar the state relied on essentially two witnesses participated in any of the treatment of mr snapp they based their conclusions in their report on a three hour interview with him together with a review of records that were available with regard to his criminal history and his treatment at the facility in fact the state didn't call anyone that had any real function with regard to treatment with regard to mr snap in th treatment program that has been authored by dr carriage for a period of ten years carrick's doesn't think he's come far enough you know where that the only evidence in this case i wouldn't be here but what we have in this case are some actuarial tools or tests that backwards of looks at what does this person done in the past in terms of bad behavior and unless if you take a test that point one and it point to the test should be the same unless you have committed some other bad act you know in between and that th testimony on that test from dr carriage was actually somewhat confusing i think as counsel points out in his brief as well it's times he said that test had him as a minimal risk or or slight risk and then he eventually said it was either a five or six he he wasn't quite clear on that but it what he was clear on is that the probability of re offense under that test was forty five percent over ten years and fifty two percent over fifteen years forty five and fifty two the other tool is and is a newer test and it's called the minnesota sex offender screening tool revise it has a acronym that i can't even begin to pronounce but that test different it's static it looks back at what he did but it's also dynamic if you've seen in the in the testimony some talk about dynamic the dynamic is the ability of people to change through counseling to change their ideals not necessarily to change his mental illness but learn how to deal with it and how to control himself  kerridge tries to say and his testimony that it doesn't take into account the dynamic he was eventually required to admit in a cross examination when presented with his report and he testified that they had sex offending screening used and what just kerrick say that well obviously confronted with the obvious conclusion that sixteen to twenty sixteen to twenty percent can be anywhere near substantially more probably probable than not he attacks the testee first admits that the test says he's not a risk but when his opinion is different and he says that my opinion is better and he says that even though his appendix and this came out in cross examination with regard to the minnesota test indicates that the minnesota test is one of the most statistically valid sexual real friends predictors available but he says they're not all they're cracked up to be and that be nice except that this  sexually dangerous person case where they fry hearing and a doctor carriage report and part of their report was the static ninety nine in the minnesota test and it was the defense objecting to the reports and to the test and there was a cry hearing held and the state was sponsoring these tests and financing this report as reliable and readily acceptable and  methodology that was generally accepted in the scientific community in the court agreed but what that tells us is that dr cherish when these tests help him when they will help his conclusions he embraces them when they don't he puts his hand out and tries to distance himsel what our courts say about the case the tests are courts in there regarding the commitment of simon's which is a sexually violent persons case as opposed to sexually dangerous but still the same really embraces these tests i cited exclusively extensively in my brief from that case and really that was another one of these friday hearing where they're trying to determine whether or not things that are sufficiently reliable that say should come into evidence and just to quote a few and these are called actuarial risk assessment tests and the court says quoting learned treatise that these type of assessments is they'd of the art technique it says that  respected researchers urge the complete replacement of existing practice with actuarial methods and suggest that the use of clinical methods were actually where real methods are available would be an ethical the weight of the evidence points to disappear already you if you don't do anything wrong with your test in the interim your test score remains the same forty five two percent chance of for forty two percent probability of re offending over ten years fifty two percent over fifteen years factors that low risk sixteen to twenty there were two samples in the in the in the amount of power they read together or are they well they're not read together they're both sent they're both a little bit different but what they're read together in this case they must mean that neither one of them results in a state a probability that is much more likely than not much more likely than not must be greater that much meat must be significantly greater than fifty percent and here we have a sixteen to twenty at best and then we have a fifty two neither one of those tested just a probability that is much more likely than not it's such that at best those that the the best test for the state says that we're body even that's where the standard fails and that's where the proof fails in this testify in this jury trial there was no further evidence presented no other witnesses presented no clinical no clinicians from the the partment of corrections who actually treated him whatsoever so i guess yeah again we're at the sixteen the twenty at bats fifty two percent worse and neither one of them can be much more likely than not and we have a supreme court that says these tests work and cites all these quotes from these learn a treatise to support that to say that there are likely sexually dangerous person fissions and let me just say this because i know we're running out of time you did cite to us people person earns a two thousand and four illinois supreme court decision i'm going to rely on for this because they think in this case in two thousand and four our supreme court does say privilege of the highest self incrimination i read it the other i read it the other way does not apply in not actually dangerous person titian i'm going to operate under that assumption that burns controls the issue that self incrimination is not part of the due process that attaches in these proceedings and lest you communicate with me in writing and share it with helpful after the your argument i think burns controls on me and i m address that later but we'll go from there ok and the other question that i have for you is maybe in rebuttal assuming there is no privilege against self incrimination how would that affect your closing argument or i think that it would undermine that argument significantly here i still talk about shifting the burden of proof right and i think that argument stands on it if it stands on its own but the state has the burden but it's really yeah so please let me know if i miss reading  thank you have the morning made me please the court may please counsel please the audience i feel privileged that i'm i get to be the one to show the students in the audience that there are lawyers here who are dreadful public speakers that is me i'll try to to trouble to this is best i can your honour's very simply both the doctors that testified in this case regardless of the burden of proof testify that there is a substantial probability that the fund and bill you know substantial probability that he will commit a sex offense in the future and they they made this it is true that they did not treat the defendant but they proceedings here are for the purpose of looking ahead to see what the defendant you know will do in the future it's also necessary to look at this this gentleman's club past history of sex offenses and there's a very very lengthy history i'm i will go through very briefly you when he was a young child and six years old he was imitating sex acts he had sexual intercourse and other problem inappropriate behaviors with with about his siblings two of his brothers two of his sisters and when those siblings were between the ages of seven and twelve he left that his cousins were between the ages of eight and ten and his symptoms when he was home on leave from the marine corps he showed interest in his wife's twelve year old sister and her eight year old brother  started getting charged with criminal offenses nine hundred seventy three he was charged convicted with problem for performing oral sex on several karate students he was there their instructor while he was in prison you were letters to these one of these students significant difference in terms of good behavior what evidence is there that mr snap would still engage in the kinds of behavior that you were describing as his earlier conduct your honor basically both doctors testified that respondent has not made much progress at all in his treatment and i understand the treatment is his own designs to rehabilitate as best as possible he and the reasons are are quite significant first of all he still suffers from many of the same disorders that he you know has has had in the past an arse you know narcissism superiority entitlement and he generally believes that the rules don't apply to him and he know that carries over to his treatment in pain in custody what he actually thinks that he while the treating doctors can help him he feels like he can actually help the  other offenders in the sexual person program obvious is of course close to to his superiority complex and things like that and the doctors testified that it's it's mental hang ups like this that are preventing him from really getting into his treatment and really w i guess they call dynamic factors that they consider you know such as defendants motivation to complete treatment his empathy towards his victims things like that you know one of those  denies all other incidents and he refuses to speak about the incidents with his siblings because he feels that it will take to mind them in some way but again dr stanislaw said it's you know how it's a mindset like this which which prevents him he's putting up these walls and he's the fences really discussing his his problems and his past and learning why he offended in the past and and learning ways to learn from those to help himself in the future  least that's incorrect these tests do not predict whether or not he will reoffend using that as a term of art but what the stat ninety nine test tells you is that there is a chance that he will be reconvicted and that chance is fifty two percent t get into the formal process where they would where you know they would get to the point that these tests for day i'm so the fact is we need to figure out if he is going to reoffend and since these tests don't really discuss   it's absolutely nowhere near to the point where where he can be really released mr nicholas am confused my recollection is that dr kerridge was the one who was pushing the use of these tests he said that it was important to have the actuarial tests to remove the element of subjectivity from making this determination and the state has been arguing for years that these tests should be  definitive test as did the supreme court in simon and also dr kerridge said that the good thing about the minister to test as opposed to the static test is that it does measure some dynamic factors and yet you're standing here today telling us that we really shouldn't paying attention to these results because there's all this possibility that there may be unreported sex offenses and there won't be convictions i'm not quite understanding the i want to have my cake and eat it too kind of argument oh yeah i don't understand your honor that  doctor character has testified in the past that these are you know important test to consider and i'm not saying that they're not important to consider now i'm just saying that they you know there are certain qualifications that need to be discussed with these tests as i said one of them deals with convictions that one of them deals with the rest we're talking about offending and dr carrick's was he didn't hide behind that he said that's that's what we're after here and and i understand you know considering the test on their own the one test is that fifty two percent of being  reconvicted over fifteen years that's a that's a pretty strong percentage based on the fact that you would you have to consider that there are some offenses that could be committed that don't make it so the point where this test problem comes forward and dr karen just said that  you know it's important to see it's been you know ten eleven years that this this gentleman has been in treatment and incarcerated and that his treatment and of course is as a as a important consideration and how he's progressing and and and now the things that he is trying to do to make himself ob etter and on through the three things as they would be considered an addition to the the static tests on their own there was something in the record to the effect that fifty six percent i think it was of people where dr kerridge had recommended that they were not ready to be released had actually been released and had not been like you know he has a pretty good indicator of what's going on and that's still a significant number of the forty four percent or the you know the number on the other side bed but again this proceeding is about this gentleman in particular that's the program the big try to pound associate themselves with people who i don't know remind themselves of the people they like basically their target and even though population i don't i don't recall from the record if there's entered in any intermingling of the two populations but the fact is that this gentleman his doctor parish believes is it is just inappropriate for them  comprehensive or as of as comprehensive treatment program as they have now concentrated and specialized the big money correctional center down and i know illinois but justice make  him being asked to go to the next level and him refusing you know this is he gets a has to question in this three hour forensic interview and by people who come in he came into the court and will county and said he's not progressing in therapy he hasn't done enough and then they jack had him with this question would you like to proceed to the next level wholly internally inconsistent i think influence like the last case that was here it flies in the face of logic it can't they jack pot they asked him a question he could mansur a few more things he's sixty five years old right about now he turned sixty five in july he's been under this program fashioned by d testimony about all these organizations that dr carriage subscribes to in his in have developed for a risk for a sexual rios i forget whether it's a minnesota sexual assessment tool they are designed test the only way we can measure these things you can speculate on what's going on out there that's not reported how could they statistically evaluate it otherwise these are tools that they have scientifically developed actuarily developed and that they and th that he feels that there's a risk that my client may take advantage of him dr kerridge testified that this gentleman mr mckeon he has sexually acted out and has been caught sexually acting out with other s t p he's at the facility but no such evident exists with regard to my my client has demonstrated ability even to even when confronted with his alleged victim tied behind the walls down there are ninety illinois to control himself and that's the whole point of recovery in this case should be reversed and remanded with a finding that in a direction to the trial judge in this case that she should develop such conditions of his release that will adequately monitor him and  strike a balance between seeing if he can make it out to stay on the outside and protecting the community what has traditionally happened in these cases there have been restrictions about any children's activities there's mandatory drug testing alcohol testing  frequent contact with probation type officers in this modern age we have g p s we have alcohol monitors they can use there are any number of a plethora of restrictions that this judge could use to try to protect the public and the children who i hold dear as well it's not perfect but i know that there's no children in prison but what if if that were  with his mental condition would ever get out because they could never ever demonstrate he needs to be let out subject to very strict and severe conditions and see if what these tests say that he's not likely to re