crystallized let's start with the crystalline version the fact of the matter is that the crying itself cannot provide a basis for the subsequent detention that would be among other things double jeopardy it would also probably in french on many constitutional protective barriers including the fact that it would be parading does not preclude expert at the downs from reviewing the circumstances of the crime to determine whether in no circumstance in in those circumstances be to what extent first best the statute the sexually violent person statute attempt to reach and at what point would they encounter a constitutional impediment supposing it were for example law i'm picking on somebody that hopefully has no right to sue for defamation to test my judicial immunity but let's assume it's it's  it's gacy and let's assume he hit casey would have if he were released fifteen percent chance of repeating his crimes with then the sexually violent persons act cease think to answer the question we should turn to the statutory text which is what i'd like to do i like the person with you and i think if we parse it the answer becomes apparent the statute which we're dealing with here is section sixty of the act and that is the lacks clear meaning we know what probable means you go to the dictionary it says likely we also see that word the legislature put the word substantially in front of probable and we know from probably necessarily mean come forth with some credible reliable evidence showing that he doesn't suffer from the type of that mental disorder that will cause him to be substantially probable to reinvent  probability is both a test for the hearing and the test for the ultimate release you're saying it's the same yes but the denture a threshold problem cause hearing is love if the supreme court has made clear it's not a more contemplates that these people that have been civilly committed have a right to petition for release every six months ok and what happened to my client and what is happening in other cases arising if he is that the state circumstances surrounding the crime to give all to met up credence to any expert testimony that will use the circumstances of that crime to one of the world's leading experts let's let's talk about practical nature of his testimony and how the trial for you is he went back to how he believes this the nature of these sexual assault occurred and he gave his opinion that it probably resulted from a sexual encounter that mr lieberman had in his younger years and he your older some something younger than half that  because he had a sexual encounter with a woman who first gave him the impression that she did not want to have sexual intercourse with him but then she allowed him to that that was something that that may have caused him to commit to or believe that he could have sex with women who didn't want to because of that incident and then there was some other thing that he stated didn't he didn't he give another didn't he explain what his opinion was you know i think there's a and it was based on his evaluation of mr lieberman presently based on his review of the mental health professional staff of valuations of mr lieberman over the past thirty years because that is the statutory accounts what is does the person have a disorder nothing at all so it's not a guessing game as to why the person committed these behaviors thirty years ago he also included  gnosis a possible explanation as an alternative to finding deceased a mental disorder and that alternative explanation several other opinions of the judge bucking the experts all by himself but that is the present us of the role and so you're talking about an explanation that that seems to be very  like he's committed seven rapes and several others for which he's been charged because it's an adolescent among other things he thinks that the woman might say no no supreme court case samuel some appropriate rates that you cannot extend to sentenced for his original crime but does not negate the fact that you might go back to the circumstances of the original  his opinions you're acting as if any expert regardless of the opinion guarantees you a probable cause determination and i don't think that's the case isn't the flipside also true that the state can then if this rate th i'm trying to say that this is expert intensive this this petition to have your probable cause hearing is going to be based on testimony and i think you're ignoring the ability or the right of the trial the finder to at least wait and more look at what you what you have presented and what the state has presented and so i think that what actor schmidt sounds is important and it and we have to review it and put the trial court at the first review of that and have the first review of the other two doctors but i think that the the expert testimony is it's critical i don't think this is a case where we cannot look at what those experts say that disagree with that but there is not an expert tested and yet record that i will address in the second but ultimately this circuit cour what about his statement that he thought that the opinion a large portion of the opinion he gave was frivolous i don't respond to that well first of all i don't think it's fair to try to an ocular your conclusions that have no basis in the record with the with the correct words you know i don't buy the witness before and i think that that's what happened here frankly i think if you look at this record there is a substantial credible evidence that this lieberman is not going to reopen and you can start with a court you have the facts that for twenty five years he refused to admit this crime and only had need to get up very recently to he's rejected treatment up which obviously can be spun either way but they certainly happily let it keep it spun in the direction of sustaining the verdict of the trial i disagree i think your comment about pieces of critical evidence mr lieberman was evaluated by a licensed medical mental help cause for the twenty years that he served his sentence there are fifteen such a value way in the pot he was tested repeatedly no evidence of any mental order he's been tested and treated and evaluated by the staff of the last ten years and if we pointed out in our brave the staff has now given him a global assessment function transit death reaction the normal psycho stresses with all of us head every day and we're not incarcerated twenty four hours a day so the people that are working with him and around him every day have given him a global but it's those people that are seeing him on a daily basis seeing how it functions on a daily basis those trained and licensed professionals that given him nor have assessed him as as normally functioning and they have not diagnosed him anymore than you but i'm the other hand we have to define what we're talking about if we're saying that the entire category it has not been catalogued then maybe it's ju science although i read the new yorker article on how the v h s m it's put together and it's in the hands of one particular experts who made all the best friends and i read about the political debates that have gone on with regard to how to characterize for example homosexuality and it's not necessarily all science it's also almost now and that's crime i share two points here first of all the records below the record below are what those in the new person who chaired the committee and testified that the american psychiatric association expressed they voted not to recognize this diagnosis point number one point number two even if there is a disagreement or controversy among professionals as to whether she should be officially recognized in the d v m i get back to my point which is if there is a healthy controversy if reasonable people can disagree as there apparently is reasonable disagreement here then you have that the statutory threshold for probable cause whether that whether it's more probable than sexual gratification through coercion then he rule out the fac that back can be a thing here's this testimony and straight answer is no but here's his testimony he says approximately ninety percent of rapes are are committed by persons who are not suffering from any medical mental sexually really understand what that means ten percent are thinking really this is a disease what would you call determined that it was not scientific with did not recognize it as an independent category does not mean it did not recognize the sense wrong it's describing a phallic mental disorder i unmistakable no one things that mr lieberman is imminently or probably likely to reoffend upon release and that's the probable cause standard and i get back to the central point as here we have probable cause hearing we can have a trial on the merits and what has happened here is the circuit court misconstrued the statute to believe if there is a jump ball there's no probable cause you've got competing experts as just right as pointed out might best be acceptable and f that's all that bad that is involved here has in fact hearing already taken place in determining whether reasons i don't i don't think that that's all if you think that's just one issue of trying to make is that just because there is the battle of experts s too highly characterize a given pattern of behavior does not render that be be challengable under any substantial probability standard because the courts in determine what science it wants to follow here are which opinion it gives greater credibility to at which point the question then times on whether the behavior which is being characterized is actually what it represented to be and if there is some conflict there then the hearing becomes appropriate well i'm not i'm not sure i follow you entirely but i am going to revert to the plain language of the statute which not a more likely than not it's not that you have a burden of showing that you're right or wrong it is putting forth you just can't walk in on a wing and a prayer but if you put in solemn credible output us you've met a probable evidence that there was probable cause to conclude that he was not substantially likely to be here no i don't think the judge concluded that there was a battle of the experts he says on record he got he finds a statute very difficult to measure it got one expert saying that one i've heard saying this and he basically found a contest in the evidence and declared game over when the statute statutory scheme does allow game over the petitioner has a statutory right to move forward i grettir the petitioner can't come in on a wing in the prayer but i don't think it's fair to look at this record and say well that's what we did here we brought in one of the pros most experts and we also call i don't know how this facility testimony just serially supports what you're saying because everybody that has been around him worked with him the therapist you're basically saying that your evidence was credible to get to this probable cause hearing and that the court totally misconstrued the standard yes yes that's my point and  ordinary course it should be the ordinary course it should be the presumption because that basis we are at a society that values liberty here and we are a society that values our constitutional rights and worse a society and subsequent to that became that two grapes and you would be committed for life then we can't get up before then and we get this committed under a civil proceeding or offenders who ha sure the statute allows does allow for civil commitment of persons who have been found to have a mental disorder blah blah blah but the step could also mean clear that this is not a another life time to mor satins that they have the right to come in every six months and have the situation reassessed based on their present situation and the supreme court is further said that in that assessment of the present situation you have to have something more than fact that they committed that act that they were convicted or so we're all agreed on that and within that statutory framework you know mr lieberman's entitled become him not on a wing and a prayer which didn't happen here we put in substantial credible evidence some evidence that would lead any reasonable belief is what the only supreme court would allow reasonable belief not not more likely than not not not make it true or false certainly not beyond a reasonable doubt but if there's a reasonable belief based on the record that that advances the ball to the hearing that that i think is a pair of construction of the statute i wouldn't say any evidence because we can all imagine hypothetical book horrible but i think the question of what constitutes probable cause at this stage of proceedings and all of those cases help paste upon its assessment of the evidence under the abuse of discretion standard that the responded in those cases hadn't met its burden to showing that there was probable cause to proceed to a second the second stage of hearings under the act so this isn't a case of first impression one other point i'd like to get out there however the battle doesn't end simply can easily be transmitted from only occurrence of the crime itself that has to be a clear indication that the crime what do they have to rely on other than the crime of the experts here relied on a number of other sources and arriving in their opinion john or not not only the the backs of the offenses which is what you responded claims is experts to review evidence and facts of past crimes if it's received notice is a direct quote from kansas versus hundreds not to punish past misdeeds which would implicate ex post facto and double jeopardy concerns but primarily to show the accused mental condition and to predict future behavior that's exactly how dr swire and ostroff assessed this evidence with this thirty year gap between the commission of those acts in his current documentary crew from the writing of their opinions and this is apparent from there were submitted written reports those reports are at the respondents appendix a forty one and a sixty three they relied on d o c records his lack of empathy in the clinical interviews his response to the question what do you think the victims here would say if they knew you were going to be released his answer was well i don't know most of them are probably not even living in the area anymore but certainly i forgot for stripes opinion that this gentleman still suffers from a pair of condition that he hasn't improved he hasn't undertaken any treatment he just within the last couple years finally admitted he did some of these crimes but according to  interview within that mission or acknowledgement that he did some of these crimes he still dissembled quite a bit with respect which ones he did and didn't do he only admitted to doing the ones for which he was convicted several of the others w authorized at this stage to weigh the evidence and i disagree respectfully with my phone and that wasn't judge just judge porter's duty at this point the proceedings according to judge orders world ruling at the end he did weigh this there he found that the opinion with respect to the no paraphilia to be quote of cert and he found that there were holes in schmidt's testimony that this disorder didn't exist in the first place and there's a lot of holes in dr smith's testimony that the pressure on so why should it be all real doctor say if an expert on this up and says he may be a serial rapist but he committed each rape based on i kind of an opportunity of course well that's exactly what dr swearin ostrov said wasn't happening in this respondents case he was not a rapist of opportunity and the record bears this out in this court is very familiar with the record the use of disguise the use of trickery the use of coercion the planning the surveillance he committed incessant rapes beginning from the late summer of seventy nine through about christmas of one nine hundred seventy nine was arrested posted by and continued to do the very same thing he had been arrested for he couldn't stop he was finally arrested in may of one nine hundred eighty this certainly informed the experts opinions that not only that only is there something about this particular respondent that's wrong but repeat not only does he show and meet the criteria for the paraphilias section of yes sound but that he's not in that whatever ten percent of sorry ninety percent of people that just rape is a matter of opportunity if they burglarized a home for instance i think true in the direct appeal from his s p p trial it was brought out that on numerous occasions while in the department of corrections this respondent continued to write unsolicited letters to women who he didn't know telling them dissembling explaining to them that he was a millionaire and that when he got out he was going to be inheriting properties all of these things in the record informed not only of the experts assessments that he has a mental disorder but rightly informed judge orders decision again that this court reviews from abuse of discretion that the the respondent in this case had met his burden to move on to the second round of proceedings thank you more there is nothing else i'd like to say your hon r if i might just just quickly check my notes here one point came up about dr schmidt's having never valuated a person for sex disorders i believe th and i don't mean to sound like a broken record here but we must defer to the trial courts finding credibility with respect to what he testified to apart from his credentials just one other quick point your honour's because the respondent makes much of that in his brief the korbel assessment function score conditionally just conditionally restrict discharge but i might note that the global assessment of functioning measures the ability to maintain a certain level of social propriety and society but this is really not  these women portraying himself in false light i don't agree with that characterization i do not agree with that characterization i remember that from the first hearing i don't agree with that evidence other than the fact of the one nine hundred seventy nine nine hundred eighty behaviors to support your paraphilia non consent diagnosis answer it is true and i don't think any additional sundry types of testimonies is reflected by the disparity of opinions that are held by various members in the psychiatric and psychological pressure regarding the d s m so that's my point found it reasonable rational disagree and if reasonable professionals disagree then you have the necessary reasonable belief that this plane court of illinois said satisfies think is incorrect dr schmidt testified on this stuff there's one he testified the best on his own personal knowledge the state's diagnosis isn't in the d s m and the second thing he tested but second subject matter was based on his own personal valu opinion in this opinion only to be not credible he basically says and i've got it right here but he basically says i don't believe doctors if he can't believe it how is it reasonable to  not suffer from some kind of mental disorder today that was his expressed opinion he disagreed with dr smith the expert on that and therefore declared dr smith not  and i don't know whether that's a their credibility finding on this record i get back to the point which is probable cause is not is not the point in the discretion to discount the testimony of an expert read cardless of his preeminence in his area that if the testimony that he gave to the judge's ear not if there is not if the record doesn't support it this isn't a situation where dr smith doesn't have the credentials and i situation we didn't do the homework situation where he was caught lying not a situation where the context of a trial this is a probable cause hearing we don't get into a debate over with the officer who testifies a prior all will cause hearing you know is a credible person whether he's got a disciplined record or anything that reasonable basis just to disagree is supported by the factual record you may disagree with it you may have different in princes you have met your probable cause threshold under this statutory scheme that's all i'm saying if you