next case on the call the docket timber eleven two thousand and twelve this case or excuse me case number one one two three three seven one one two eight zero two agenda number four good morning your honors mr mr peshitta miss beer may please the court my name is the biggest which i am with the illinois attorney general's office this morning i'm representing the people of the state of illinois in these consolidated cases as the in the same bridge matter and as the apple e in the lieberman matter your honour's this case involves the scope of the post commitment provisions to the illinois sexually violent persons commitment act in particular sections fifty five sixty and sixty five the purpose of these provisions is to provide for periodic opportunities for individuals detained as s v p to demonstrate that their condition has changed or progressed to the extent that either discharge under section sixty five or conditional release under section sixty is appropriate to the post commitment proceedings that issue here do not provide a mechanism for respondent to collaterally challenge the original judgment of s p p status on an annual basis or otherwise that judgment has been found valid beyond a reasonable doubt the facts underlying these s v p cations had been found beyond a reasonable doubt by a jury and subsequently affirmed on appeal and thus we arrive in these proceedings and mr lieberman and mr stanbridge arrive in these proceedings as presumptively sexually violent persons the respondents here are proceeding under section hundred sixty five lieberman has filed a petition for sub for a discharge under sixty five and for conditional release under section sixty while mr stanbridge has limited his challenge to a petition for discharge under section sixty five the respondents petitions on their face failed to address the adequate criteria in section sixteen sixty five such that the trial judge would be in a position to find probable cause that would justify further in seventy is you go to section sixty five b two which is a full trial if appropriate meaning you've got to get through the b one gate keeping mechanism first so yes that's that's the background on staying bridge  at a later hearing being the second stage not necessarily your honor both section sixty and sixty five permit and contemplate that both sides will submit and present expert testimony on the issue of this is going into the the per purpose perceived tension between this court's decision and harden and the text of section six hundred sixty five i believe i'll get back to my my point i was making earlier but to answer your honor's point our position is that the unique characteristics of these post commitment provisions expressly allow the trial courts and in some instances instruct the trial courts to look at side by state must submit an annual report detailing whether there's been sufficient progress made to justify discharge and if that at that time the respondent is also allowed the opportunity to have an expert question to you is your position is that because there are multiple evaluations that the purpose of the probable cause hearing is for the court to decide this term and which one to believe corrections then what is the purpose of different trier of fact the jury which is a significant difference the burden is also different the state has to prove it's a that the burden is shifted to the state at that point to show by clear and convincing evidence that the person is no longer sexually violent  evidence the credibility decisions the any different they might be your honor certain other witnesses certain could be called character witnesses witnesses who might testify as to accommodations that might be available to the person on the outside  vocational opportunities relationships family questions all of these things that wouldn't come up if he says first stage sixty five to hearing would be open to debate and each of these subsections whether sixty or sixty five contemplates that conflicting experts will opine what they don't say what their argument is in effect is that you should just look at the respondents proof just to see if he made a plausible account to advance on but what they don't answer is what exactly the judge is supposed to do with state's proof oftentimes which will be in opposition to the respondents expert's report and as it is clear from is that the trial judge when faced with these conflicting reports whether on paper or in person is going to have to make a judgment call about which is more credible then advance the case on based on that finding and any inferences that could be drawn there from  saying that the probable cause equation at the post commitment proceeding is viewed with perhaps a broader evidentiary i'm just asking why that would be in light of that it would seem like the same liberty interest is involved in both the pre and the post  sure and your assertion is that how you view the actions of the expert evidence at the pre commitment hearing is different than how the judges to view it at the post conviction or at those commitment r saying i'm just trying to understand what the same interest involved committed you know why would there why should there be a different standard in the air ticket why the why the way the expert testimony is viewed should be different at the post well i suppose your honor that this might get back to my previous point i made my opening remarks that the purpose of the pre commitment statute that the purpose of the these postman statutes differs here word a situation  in the litigation where these individuals have been found to be sexually violent persons they cannot come in and claim as their experts as my opponents experts did while he was never sexually violent person in the first place there's never been anything wrong with him at all he's perfectly fine so the burden necessarily rests in in showing that that liberty interest is bears bears attention at this stage that at rest on their spondon is the moving party to show or to to show some sort of change or progress or some kind of mitigation in the mental disorder that causes this person to sexually  offend i'm not sure if i'm answering your question your honor but i think that's the the difference here is that creepy and pre commitment proceedings the burden of course is on the state as it should be to make a plausible count that proceedings can move forward to trial on the back end here we are dealing with individuals who are s v p the jury found the mess b p these decisions were formed on appeal and in that case some some burden or responsibility must rest on the moving party to demonstrate that there's been something  there's been some progress or change and that's reflected even in the text of section sixty five which requires the respondent to show that he's not still a sexually violent person meaning that he comes in a sexually violent n e s to make some change show some change in behavior whether it be through treatment whether it be through some parole there's all kinds of things that could could serve as examples perhaps some kind of physically physical accident that render someone able to sexually offend backed by science of course  available at the h s and neither of these individuals has participated in any treatment mr lieberman i believe has been in the department for almost coming up on thirteen years now mr stanbri not not much less and in all that time neither has indicated any desire to participate in treatment that can make that the experts say can mitigate the disorder such that you can get to that point where you're either not actually violence any more or under section sixty that you can be released but with some preconditions as in checking into a halfway house having a job lined up meeting with a therapist once in a while treatment is the first way to come to grips with these problems and neither of these individuals  participated in it in fact neither individual claims that there's anything wrong with them in the first place and that's why they don't need to go to treatment neither individual here has shown a bit of remorse neither individual has shown that they've been they're interested in coming to terms with their problem but mr lieberman in particular denied that he was the rapist in some dozen cases from the late one nine hundred seventy s despite being pointed out in court by his victims and it's only recently that he came to terms with that and said that yes he did it but then he backpedalled it so the treatment and other remediate of procedures that these individuals can take and that they should take to get to that second stage our vital importance in this in this treatment regime and kansas versus hundreds you know simply said that the purpose of these statutes is to make sure that dangerous sexually dangerous people are not let out into society until they are ok to do so let's assume it's a different kind of evidence that we might ok junior where there is an expert that says in fact this person has been cooperating and has made progress and inconsistent maybe in some of the places that i thought one thing very striking about sixty five be ok that we're talking about here in terms of this hearing yes that that committee is not entitled to be present at the probable cause hearing that correct how do you think that fits into this in else's of what the legislature pictures this hearing to be you seem to be saying it your position is this is a place where the trial court makes the decision about who to believe correct why question being if i might paraphrase why shouldn't he be at that kind of hearing that seems to be a little bit more substantive in nature i don't know your honor i do know that lieberman himself was at this hearing and stanbridge was given an opportunity to go to the hearing refused so speaking anecdotally i don't know what the numbers are on who who goes and who doesn't i'm not concerned about what clues this  i think the legislative intent is better understood by reference to the experts that can come in and testify that this is supposed to be  hearing at which the judge when statutorily obligated to review conflicting reports must make a judgment on that and the fact that the respondent isn't to is not entitled to attend it that i don't think speaks to the i don't think it dilutes the our interpretation of the text that this is supposed to be a hearing at which the judge when faced with differing accounts  has to make a judgment on those counts he is of course going to be at the full hearing which is broader evidence or more in evidentiary sense much broader and i think that that that should mitigate any concern that if i could just get back to jump all the way back to the first opening comments i made this court really need not delve into the hardened inquiry and the parking ticket because as i said in my opening remarks the petitions filed by both of these individuals are facially defective because they failed to answer the statutory criterion sections sixty and sixty five section sixty five requires a showing  probable cause that the person is not still sexually violent dr smit who was lieberman's expert didn't address whether he was still sexually violent by reference to any treatment by reference or any progress by reference to the discussions he might have had with him this coming to terms with what he did rather schmidt opined that the disorder that mr lieberman was diagnosed with paraphilia and wes in his academic opinion doesn't even exist as an as a disorder in the first place and he also testified that even if that disorder did exist there's absolutely nothing wrong with mr lieberman because his decision to rape all these women is probably perhaps he wasn't too sure traceable to one instance when he was a teenager and someone who he was trying to have sex with said no and then said yes the trial court by the way found that that explanation to be completely have salut mean totally absurd in short dr schmidt didn't ever explain why this is not not still sexually violent all he explained and opined about was why he's never sexually violent in the first place and therefore even putting aside all of the states proof and avoiding the harden  question here and the same goes for stanbridge who's expert testified only that there was never anything wrong with him in the first place and basically repeated his trial testimony that was rejected by the jury the trial courts here  both said in so many words that this wasn't good enough for purposes of the subsections judge porter sitting in cook county in the lieberman case said that well we already know that the disorder  lieberman has is the jury found it so i'm not sure what i'm supposed to do with that it's been found to exist in this case and as for his explanation why he raped all these women to explain his month his proclivity for raping it was  absurd as noted and the judge unstained bridge when confronted with the the wetherspoon report simply said this is all the same stuff you gave me before there's not much i can do with it  many words so we would ask that this court affirm the lieberman case and reverse the stanbridge case on the much cleaner basis that neither case presented neither respondent presented a case that met the statutory criteria for post commitment purposes by providing an account that they're no longer or not still sexually violent your honour's a c m out of time there are no further questions i thank you for your time thank you one and it's an important distinction because when you look at the language section seventy it's titled additional petitions for discharge and then it starts off by talking about in addition to those provisions allowed in section sixty five be one we have this other provision under section seventy it is different from sixty five b one because sixty five b one is tied to the timing of the reexamination that occurs under section sixty five and under section seven it says very clearly that the person can file at any time so it's unrelated to any of examinations done by the department of human services in addition to this and this is a very important distinction because this statute talks about a person who files petition without the secretary the department of human services permission for the first time and what happens and then talks about what happens when the person has filed a petition without permission from the secretary on subsequent occasions and one of the first focus on the language regarding the subsequent petitions that are filed without permission  it is my belief that that first petition could have been filed under section sixty five be one without permission of section seventy without permission but in either case we're now backs which i found could support the court finding that and i think the particular language is that the condition of the person has so changed then when you look at the first petition filed with out permission no requirement for change and if the legislature that enacted this knows how this hey we require change and allegation regarding change on subsequent petitions and they're not requiring it on the first and i think it's real clear what the legislature meant when th that i hadn't looked at the amendment to that statute that was made january one two thousand and so i click that button on my computer and it will of course the change was   in compliance with sections sixty five b one that language was removed it's not here there is no reference to sixty five b one probable cause hearing in section seventy my client mr stanbridge did not file this petition this first petition for just charge this first petition with it for just charge without secretaries approval under section sixty five b one it does not apply  talks about the trial that will happen in the case it can be a jury trial it can be a bench trial the standard of proof and who has the burden but the probable cause hearing has to  that either at this time he had found no sexual psychopath and in addition to that when you looked at the stat it two thousand and two are in combination with a right to present evidence that's that's provided in section twenty five c and it's going to be assumed that that and so it was so i hope it's going to be contrary to the evidence that the state presents it's going to be conflict in evidence court is confronted what's called blight and credibility problems and a probable cause hearing then yes but if that light incredibility issue isn't to sign it then the question is is whether or not the petitioner has presented a plausible  on whatever the petitioner has to stand such french very evidence only to point out where your credibility problem it is not and i think that it has to do with how these cases get to court and and for some reason in the state house that petition for a finding of no probable cause and that sixty five b one talks about when the petitioner doesn't waive his right to petition and doesn't by then under the b yes good morning me please the court counsel my name is anthony and i represent mr bradley berman who in january will mark his thirteenth year in civil cost city in the state of illinois based on a diagnosis of a mental disorder that does not exist and based on into exclusively on past criminal behavior fundamentally this is a civil rights case the state is severely incarcerating people who have served for criminal terms as determined appropriate by trial courts pilot courts the department of corrections it is the state's position that these sentences want long enough in order to protect the people of illinois in that civil incarceration is therefore necessary as united states supreme court and this court has made it's crystal clear this presents a serious constitutional concern which this court is designed to be vigilant  that constitutional right is that civil commitment will continue based solely on past criminal conduct exclusively in violation of due process protections double jeopardy protections and violation constitution united states st in recognition of this the general assembly instituted several protections protections built right into the act and one of those protections is that the committee after commitment is entitled to a new will review and in order to have that interview part of that process have a probable cause he but if the state requests this court to x a day it would this or a to the purpose and indeed the letter of the law that protects citizens of illinois from unwarranted and unnecessary civil commitment the state seeks to continu coupled with that is that's legal position the probable cause should come to oppose commitment should come to such a high burden that no citizen in illinois would actually be able to overcome it and i ask this court to undo decades  rot on what probable cause means and how much the term and this court should remand mr lieberman's case for a full trial on the merits for three reasons first is that following the testimony of dr schmidt at the probable cause hearing in two thousand and eight mr specified diagnosis that the state relies on is in fact based exclusively in thirty four year old criminal behavior and all three testifying experts agreed that that the diagnosis is based in criminal behavior alone and finally the state's position today regarding probable cause would nullify the purpose of not only the annual review that post commitment committees are entitled to but would nullify the purpose of the probable cause hearing itself the trial  exist beforehand and any further protections in the act that allow individuals to remove themselves from further commitment testified at the probable cause hearing in one thousand nine hundred six he chaired the committee for the diagnostic statistics manual the some three which determined whether or not carefully not otherwise specified would be included as a mental disorder that the psychological community should be and he did think that this was a recognized disorder is the state right when they say the testimony of dr schmidt failed to address whether lieberman was unlikely to commit acts of sexual violence or if  has and he doesn't suffer any other care for the disorder that makes his sexual violence likely it is the key word in the section five of the s p c s statute that people who we commit in illinois should suffer from mental disorders that compel people who are committed for having sexual disorders are allowed to challenge that continually whether or not they continue to suffer from that mental disorder or do this it was that said it's part of the end of the review process in the continued petition process but as that you're allowed to petition for conditional release that you're not likely to commit a future crime is the standard there or that you're entitled to just charge because you don't have the disease that you're being committed for yes one of the question along that line in terms of the standard we all know that the statute has been amended  and the standard has been changed to some degree the legislation also says that that new standard shall apply to all pending titian's what does it mean for us here that that amendment doesn't apply and that in that we should use the the appropriate two thousand and eight version of that statute even if this court opted to use the more the revised version the twenty to twenty twelve version but issue is still the same the testimony is still the same the woman does not have pedophilia not otherwise specified and should not be continued use of when question either for that reason the modification in the language from the still i believe to no longer really represents the same issue is this person suffering from a mental to have a hearing on whether or not mr lieberman's commitment should continue he only barks that hearing the only burden that mr lieberman has to overcome is whether or not he can establish probable cause that he's no longer such a violent person and that he's not likely to commit acts of sexual violence he  meanings stayed out specific words but he is not likely to commit sexual acts of violence in the future and that's it's just not true it's not necessary the obvious implausible implication she used this coarse language from harden is that he is not likely to commit sexual behavior sexual violence in the future because he doesn't have a mental disorder that compelled her compresses that behavior that really is essentially the only issue is this person still set that such that we have to protect the citizens of illinois about locking him up because we think that he's so likely to commit future crimes that that attention allows us to to overcome our natural tendency to prevent the government from detaining people without cause and beyond that the only issue with this petition was whether or not mr lieberman presented a plausible account that he had established that we're not asking this court to find that he did definitively and that he ought to be released the only relief that mr lieberman is seeking is that we have a full trial on the merits as to whether or not he ought to be continued to be civilly detained and that issue is is governed by a roll bar as this court outlined in its hard decision we need only present that plausible account reliable or even reasonable evidence and it i unquestionable that after dr schmidt finished testifying it was reason to believe and possible evidence that mr lieberman did not suffer from a pair of philip disorder and there should have been more concern that the diagnosis that he was based but that his his commitment continues on and in two thousand and eight he had been committed for over eight years at that point there's a pretty significant disagreement about whether or not that diagnosis even exists in the medical community and the majority of the community medical community indeed the people who  books that tell psychologists how to diagnose diseases say you shouldn't be using this disease and to look back into my earlier point the reason for that is not only that it doesn't have scientific support but that the d s m committee in eighty six was concerned that it would be abused by the legal system and th that diagnosis shouldn't exist there's no reason to use that i've seen that amount of time and if there's no further questions i'll continue on rebuttal thank you and continues to emphasize that her petition is filed under section seventy and that somehow that relieve her of the evidentiary restrict requirements imposed by section sixty five b two i'm sorry sixty five section sixty five the statute as it reads now is that if you file your first petition under section seventy you go to section sixty five the two if appropriate if appropriate language is important because the only way to get to section sixty five be to which is a full trial on a discharge petition is by fulfilling the criteria duly needed in section sixty five the one which as we've talked about here today is by showing probable cause that you're not still sexually violent she's not in type bridges not entitled to an immediate trial on his first petition for for a discharge replay in reading of sections to seventy in conjunction with section sixty five b one justice thomas in the court expressed some concern that latent credibility problems may be could be determined by looking at reports side by side as somewhat akin to a cross examination the difference is that oftentimes competing reports are going to be compiled and read compiled compiled independently and then read independently by the judge and we're not there for our often provide a very good opportunity to ferret out the blatant credibility problems in the other's report that something that's much more a line for a cross examination situation where the validity or credibility of the the report itself is at issue under cross examination when the judge has two reports neither of which  was compiled in conjunction with the other or any kind of collaborative effort it is going to be up to the judge at that determine if that point to determine reviewing the past record as a whole and any progress that's been made whether one or the other judgments reports is going to carry the day and one last point i want to focus on even if this court disagrees that these petitions filed in these cases were not facially defective and even if this court finds that the trial court in harden i'm sorry  bridge in the trial court and lieberman exceeded the balance set by harden in weighing the reports both sides reports and the expert opinions proffered by both sides suffered from the kind of blatant credibility problems that this court and harden said that a trial court need not its ignore the judge in the lieberman matter completely dismissed dr schmidt's opinion that lieberman suffers from no mental disorder whatsoever considering the number of his victims and his history as a violent rapist he called schmitz opinion in this regard blatantly increase totally completely absurd on the record and  likewise the steam bridge expert while the trial judge didn't find that he was blatantly incredible and used those words he did find that his assessment overall offered absolutely nothing to the process as because it mer parroted the same reasons and the same justifications for finding that he wasn't in s t p that he raised at the original trial and so if this quote disagrees with us on the first two points it can and should dispose of the some that's based on his experience offering it he's also there to testify that mr lieberman had a gaffe square a seventy one which is undisputed by testifying experts for the state that gaffe score puts mr lieberman's likelihood of verses of  behavior well within the normal range that is an undisputed fact in the record it's not opinion testimony to be weighed based on credibility and finally is undisputed in the record that mr lieberman is diagnosis of piano as is based on exclusively on his past criminal behavior those elements are not opinions they're truths that the court accepted and based on that evidence alone really there is plausible evidence that mr lieberman is not suffering from a mental disorder that warrants his continued commitment and based on that evidence alone that fact evidence the court ought to have found that there was probable cause that he was no longer such a violent person now dr smith's opinion is that mr lieberman does not suffer from a pedophile a disorder that opinion also is not true and or should not be set aside by a question that dr schmidt was responding to and in that in responding to that question his answer was i don't know what caused mr lieberman to commit acts of sexual violence however mr lieberman does not suffer from a disorder that compelled that second the state's position that conflicting evidence is invited at post commitment but not pre commitment is is incorrect in at least two them serve result that result being that a court in determination of probable cause need not follow this court's opinion on harden because its post commitment the clear isn't looking for a possible account under the state's interpretation of what the statute means but is actually allowed to weigh evidence in a way that this court has forbidden trial courts are doing in the in the pre commitment stage now but his reason for this is that the statute subsumes the idea of conflicting evidence and this just is not correct yes the statute does of soaps and the idea of conflicting evidence but because there is a liberty interest at stake that liberty interest is the same pre commitment as it is post commitment we're going to be rocking up a person for having a disorder it's our job to determine whether or not there's probable cause to believe that that disorder exists or doesn't pre commitment the court sitting in a probable cause hearing is invited not only to hear cross examination testimony which is our best tool towards finding the truth but also is invited to listen to hearsay evidence evidence that six personally and traditionally on a route at trial courts because it's unreliable but courts are invited to consider that evidence in conflict in order to determine whether or not there's probable cause that does not in fact this idea of weighing the state would have us do his commitment also the state modifies its understanding of what right whether or not a person is entitled to an expert and what her own expertise require an expert and indeed mr lieberman and his pre commitment probable cause hearing was not barred from having an expert to present conflicting testimony it's just not entitle to want to tap at that face the fact that he is entitled to have a court appointed expert just like dr ostroff and so to some guarantee that that testimony is going to be conflicting dr ostroff found that mr lieberman had penalized face exclusively on analysis of his criminal behavior that died that the existence of dr ostroff did not invite the court t weigh whether or not mr lieberman had a sufficient expert testimony it's just not the way that the statute is written out it's not the way that ought to be interpreted and applied and it's not the way that this court in indicated it should be applied and in hard finally the state argues that we're not here to talk about hard we're here to talk about whether or not mr lieberman's petition was facially sufficient now this court when it vacated the over the original decision from the first district sent it back down with the explicit instruction to consider th to the sufficiency is not an issue about admissibility it's not an issue about relevance and it's not an issue about plausible accounts an issue about whether or not dr schmidt's presented testimony that is supposed to be a listed from the statute and it's clear on the record that he did testifies regarding months of the sorters testifies regarding whether or not mr lieberman has a has a mental disorder that makes his conduct likely to lead to sexual violence that's all that is needed to establish a plausible account of further testimony that the only sexual disorder that mr lieberman's ever been accused of having is unsupported by science establishes a plausible account that maybe mr lieberman does not have the disease that he supposedly does or no longer has that disease and  not be committed for it those facial present any arguments don't apply to dr smith's testimony his testimony was entirely sufficient the state never objected to him testifying the state never objected at trial whether or not smith's opinion was sufficient to try to manipulate this now into some sort of fry argument is not what we're here to discuss we're here to discuss whether or not dr schmidt met the standard for possible for probable cause articulated by this court and d