be hammering you on the clock but save some time for rebuttal the microphone there is for recording purposes not for amplification so keep your voice up so everybody can hear what you have to say ok thank you entitled at that time to effect of assistance of counsel instead what he did receive was a counsel to conduct a no meaningful volunteer at the beginning of the trial in fact the trial court room marked at the end of jury selection that he was appalled in a good way and flabbergasted and happy that they were able to get a jury so quickly he received an attorney that in opening statement said and i quote mr dodge's a horrendous background he's done thirty six years in the penitentiary he began to lay down his defense which apparently was an age defense that mr dodge would not refer and at the age of sixty or above he did tell the jury that for someone to sixty there are no statistics saying anyone is ever really offended the evidence pro later that that was untrue however mr dodd was only fifty six at the time so it was really no defense at all he then did something that not very many defense attorneys would ever do he promised the jury that his defendant would testify he told them the mr dodge will testify who give you an idea of what he's like you'll get a good feeling for him and at the end he told the jury that he would that they would have reasonable doubts especially since mr dodge isn't receiving any treatment sort of a nonsensical thing to ask the jury thereafter wood fired what followed was a trial which consisted of what the attorney general's office has defined as largely uncontroverted and uncontested evidence and that's indeed what what it what took place and i can return to that in a few moments the closing argument was just as problematic as the opening the defense appeared to be one of jury nullification he told the jury to consider whether it's the right thing the fair thing to do to commit him trail counsel did not address the elements of the case he did not even mention the burden of proof he simply said enough is enough it's time for him to go home after that the closing there is a jury deliberation that lasted approximately twenty minutes and the jury came other thing that strikes me as being silent is any suggestion that there's any other evidence that would provide the defense counsel with any ammo so to speak to argue either to the jury that he is not a sexually violent person or to try to persuade the judge in a more meaningful disposition hearing we don't have any suggestion in any of the arguments before us there was nothing in front of the court to indicate that there was some kind of different evidence or more persuasive evidence well what's your position on that we're sort of constrained by the record at this right if this were a a critical hearing or if this were a post conviction hearing we'd be able to supplement the record with what that evidence would have been what it could have been how things should have been done but with the record see any before says it as it is not really able to introduce that evidence i can say that with regard to the section forty hearing there are specific requirements that a trial court has to consider before coming to an opinion that the individual should have secured treatment as opposed to conditional release treatment there was no attempt by the trial counsel to introduce that evidence at all and that evidence would have come from requesting a predisposition evaluation and there was no commitment it says if an individual is being held in cook county jail and wants to come out and he can't come out he's not required to stay there if you can post about even if it's a terrible case and if the presumption is great that he's going to be convicted the same thing with regard to treatment you're not under any obligation to seek treatment before you get out and see and infect treat seeking treatment as part of this panel i'm sure knows is counterproductive to trying the case because the first step in treatment is full disclosure of everything that happened not just in the matters that are the precursors to the s p p petition but in anything that you did ever in your life then information then comes in at trial so it is completely counterproductive to into treatment before you go to trial because e is in the year two of the jurors offered that they had some insecurity about their facility with the english language which those of us who have tried a number of cases realize this is within the litany of things that are raised by some reluctant potential jurors sometimes i thought one of the interesting things was one of the people who said he wasn't proficient in english use the word  exactly pigeon english but in any event neither side move to either challenge those witnesses or use a cause to challenge on them  d it seems to me that it's difficult at like your view on this to ascribe anything other than trial strategy to that because it's often the case where you  those arrows in the quiver for potential readers who could be troublesome to you that's true and in many circumstances trial lawyers on both sides have said well you know i'd rather have an effective jury of ten people then use a pere challenge on two people who might not hear and understand everything that is being sad and that would seem to me to be a quintessential trial strategy reasoning can you tell me  why i should look at this differently well i think that if we're talking of what they are the court has to look at it in its entirety the fact that there was only one challenge exercised by trout counsel and that was for an individual that head i believe was a friend that had been sexually assaulted that she was very close with them not she said she would not really be able to believe the language was i don't know if i could be fair knowing that so there was a challenge exercised on that there were i believe seven challenges that were exercised for cause and those were brought to trial court's attention by the state each and every one of those people said they didn't think they could be fair because of some other preconceived ideas about either the case or some other connection to the criminal justice system one of the things that was most interesting in the fraud here in addition to the language difficulty was there were no questions posed by trial counsel at all to the panel a question that probably would have been helpful would have been mr dodd is going to come before you're convicted of a number of sex offenses and knowing that can you be fair where the failure to ask that type of question is found to be ineffective i think the court knows that i cannot well she say you are if you could to you probably would just show once again that you're very careful researcher because i just i'm not familiar with any such case and there is no case that any court has reversed with regard to dire questioning however is as court knows under mcmillan you can take the entire trial into account start to finish and then it's something i think that the court needs to do one is considering whether or not there was deficient performance and whether or not th egregious which seems to be allowing the worst of the worst argument to come out in front of the jury that particular argument has been roundly criticized by other states that have heard it one other states in kansas reversed a case partially  in in light of that saying you just can't put out there that this individual is the worst guy you will ever see you can't do that you can't introduce that kind of evidence it runs afoul of rules for a one four zero to one four three it is simply irrelevant to anything going on and there was not even an objection there was not emotional lemonade to buy or that evidence and you're referring to the fact that the only interview screen two percent or more it's a winnowing process they are originally look at perhaps a thousand to two thousand cases a year then the funnel get smaller and smaller and smaller and then at the end we ended up with mr dodge and it would it connotes to the juries clearly that this is the worst guy you're ever going to see without even any evidence and you saw the attempted to  though they did hear plenty of evidence that again the evidence that they did hear a lot of that is all basis of opinion evidence not to be taken a substantive evidence at all just for the reason that the experts came to their conclusion and those in that evidence was not challenged by trial counsel either there could have been questions such as did you reach any primary sources did you talk to a victim to talk to a police officer to do any research on this and the answer and the question simply weren't asked there was no action on the part of trial counsel that subjected these facts to any kind of meaningful adversarial testing whatsoever the evidence i was sort of alluding to was more just the fact of what he was involved with that led to all these numerous convictions that's correct that's not admissible the substantive evidence and there was a cautionary instruction that was given to a sponsor of a judge mchale before the testimony of both of those experts dr roy and dr smith and there is a conclusory jury instructions telling them that this is not not an effective opening it was not in effect the closing there was nothing effective in the middle specifically the selection of a defense of he's too old it was in the nondefense it's not in my head that it's ineffect just for the sake of our discussion this morning what about the showing us some way that this was that prejudicial to mr davidge what and that only comes into play of course of this week when analysis right and not  no alternative but to convict in a criminal case i would suggest to the court that the same standard would be present here if the theory of defense is no theory if the jury is left with nothing at all then there is clearly prejudice they have no alternative if they adhere to the jury instructions which they are presumed to do but to follow those instructions and then make a finding that he is in s p p if trial counsel does not understand the law that is sufficient prejudice if asserts an incapable and on viable defense they had a sufficient prejudice and those are the prejudices that we have had here in addition to that mr dodge continues to remain in the treatment facility and when it comes to the disposition hearing there was no disposition hearing of any kind that will get to that there that's another issue entirely record indicates i guess if you focus on that for me mr klein i'm curious because obviously as you as you alluded to quite correctly earlier on you can't bring in something that isn't in the record  so we don't know even if you know what would be in that transcript but you are suggesting that there was something in there that would have been helpful had he attempted to impeach without any evidence of that it just stayed out of the proceeding and what we have is the statement that i think the state quotes in in its brief where he says i'm not trying to  impeach it it almost is is a suggestion it's a preamble to further discussion of that issue without the availability of something that isn't teaching and next course he would leave puts aside the issue of why without a transcript you're not able to confront someone with a prior inconsistent statement if there is such a statement which you know it is is not mentioned by anybody but you just write strike me as rather curious but if you'd like to address well i think what we need to do is just back into that little bit there are only two witnesses dr smith and dr roy and the d h s a failure waiter did he had the wrong standard when it came down to much more likely than not so there was something to argue with regard to his credibility and his expertise dr royal on the other hand was largely unscathed through cross examination or direct examination so made it all the more important that if there was something to impeach him with then impeachment would be perfected that that question would be asked i cannot tell you what the what the deposition transcript said there is no deposition transcript the lead in questions the trial counsel posed to dr royal were textbook questions on how to perfect an impeachment the question about why didn't you say in your deposition and it was about the issue of age without knowing what it was that he was going to follow that up with the sunday record being silent already left with the fact that was it in effect of not to be able to perfect that in that impeachment we are to presume for purposes of your argument if i understand it that he was trying to impeach that there was impeaching statement in the record and that they did peaching statement in the record at least for strickland purposes would have the feel your two piece there would have been prejudicial that's correct because that would have been the only prejudice that you could find in the record not counting trial counsel's inability to cross examine or unwillingness to cross examine the cross examination in both of those witnesses if you if you look at them if you take out the squabble about whether or not it was an impeachment cross examination for both of those highly technical highly professional witnesses runs about four pages and never does a cross examination attack the diagnosis never does a cross examination attack the standard of substantially more probable than not there's going to be offended except for focusing on something that was nonsensical that nonsensical thing being that if you're over sixty you're not going to be offend but he said the respondent isn't  think where is the evidence that counsel should have presented i mean is there anything in the record that would give us something to rely upon that counsel was deficient in that presenting evidence and that making a argument based on information that he had available to him i think the only thing that because the record of silence again we're in an awkward position as far as introducing new evidence but because the record is silent we have to rely on your honor's to say what would you  want to do here if you were the trier of fact i can give you some examples of that although these aren't in the record for example the actuarial instruments or those actuarial instruments peer reviewed have they been tested for  could've elicited the evidence that there was actuarial instruments are as good as a coin toss he never did that this is all information that you would be able to find if you just looked at any website talking about those actuarial instruments he could have also  hundred two they were within ten days all those offenses took place even a layman's reading of the d s m four would tell you that when you looked at the diagnostic criteria and did differential diagnosis that's indicative of some sort of a psychotic break those questions could've been asked there is no stretched out period of time from seventy four to eighty two where there was an offense and then a couple months later another offense which to refresh my recollection as to where he was clustered all of the stuff together and from a diagnostic perspective and the ability to cross examine on a diagnosis in front of a jury that would have been very relevant but i mean isn't it a fair reading of the record before us that there was  say of this activity arrest imprisonment release clustering arrest imprisonment that's correct and there's no dispute as to that but the question and s t p proceeding is were those offenses the product of some sort of a mental disorder that was sexual in nature some sort of a paraphilia or on the other hand was it the product of some sort of a psychosis investing the crux between those two other than coin and psychiatry  said i used to use the d s m three in cross examination too but i mean other than your you know ruminations what we have to rely upon there is no evidence that i can give you to rely on because it's simply not in the record he was clearly not read well prepared so that he didn't hear anything so i don't really believe that i can good faith argue to you that there's a generic ineffectiveness but i can point out specific places without having to come reliant coin o psychiatry for example what is it that this court would have liked to know about this cross examination you can come to that conclusion you could look at cross examination in your collective wisdom you could say this was deficient because some of these questions  me as a trier of fact questioning what happened under act why weren't these questions asked and it doesn't have anything to do with knowing what the record was just a question of what happened one example would be the redirect examination of d then there redirect examination the question was about remorse you know i'm sorry the recross examination was a question about remorse in trial counsel said so what you're telling me is that after thirty two years in the penitentiary he has no remorse and the doctor said that's right he has no remorse there is the effectiveness of cross examination with that question it does nothing but highlight what the doctor said that was antagonistic toward his positions let's move if we could given the time  to the question of the quote meaningful dispositional hearing if we don't go your way and the ineffective assistance of counsel argument you throw in there at the end that we could remain  for a meaningful dispositional hearing what's the legal basis upon which you would suggest we can give you that there would be a fields case that's recently been decided by this court a disposition hearing under section forty requires several things it requires that not only that the respondent have a mental disorder it also requires that arrangements are available to make sure he's got access to treatment and that will participate in treatment after a finding that evidence was not before the court at all that's what would be put forth in a dispositional hearing for the court to say i'm just going to consider the trial dispositional hearing when those two elements he had to be admitted during the trial because they'd be improper there's they're not relevant and there is even there is a motion eliminated  me were the judge said this is for the disposition of that ring which you argue never really heard in any meaningful way that's great because the evidence that the state of seeking to preclude from coming in a trial was just that evidence you can't have it both ways you can't preclude the evidence from coming in and then say the court had that evidence that's it's just not appropriate and that's not what happened here so without those statutorily mandated factors being fulfilled by the court without the court considering those factors it was not  case the victim however was under age consent was irrelevant and the only appellate court said in that case that it's simply a chronic care to assert a defense that cannot prevail as a matter of law i no so with regard to chronic i believe that we have raised a sufficient a sufficient chronic argument for the use of an inappropriate defense the defense that could not ever succeed age i started because of the age because of the a right  not only are was that defense on viable from the very beginning but the evidence from both of the doctors that testified was a flat out no isn't it true that no one offends after their sixty no not at all they offend at a reduced testing and i would point out that in this particular case as i mentioned earlier even the state agrees that there was one can uncontroverted uncontested evidence here in their briefs that page twenty eight that's how they characterize t i would agree with that it's one of the few things in the briefs i do agree with it was simply not contested at all and that's why it brings us over into a chronic standard finally of a few of the other areas that the court can consider the generally speaking to be a motion for directed finding made it was clear that there wasn't until the next day when it appeared in the record that someone may have said hey do you want to make a motion for direct the find of course though with the evidence having come in and i understand you're arguing with more centrally the lack of a meaningful function to have a nation with the evidence in the conclusions that came in  there simply a mass of lack of preparation and inability to do this and i would say that that that's another point that does show a lack of either preparation or an inability or simply not knowing how to try this sort of a case this is not a criminal case and while trial counsel may have tried hundreds literally thousands of criminal cases that's not what this was the argument that a jury nullification should be an appropriate defense again isn't unavailable defense improper and essentially that's what they said nullification defense though sometimes is all the one pass and the argument is can't be that is per se ineffective to try to use been gone into during the trial what in effect of cross examination one other factor is trial counsel never asked the doctors about some of the things they knew and could have brought out like protective factors trial counsel could have asked about the various protect the be that truck council didn't know the case law that defined substantially probable as much more likely had he known that he could have developed a line of cross examination tied together with the protect the factors that were available and made a credible argument in closing separate from the question of whether counsel was ineffective are you suggesting here that the trial court itself was improperly denied the defendant a meaningful dispositional hearing if that  preserved i would be can i would be saying that it was not preserved in a motion for new trial there was no objection by trial counsel so were compelled to sort of attack it through the ineffective assistance of counsel i believe that the fields decision clearly addressed this have the dispositional hearing which would waive the issue or eliminate the issue of whether it was preserved to trial we could there is still some open area to be completely forthright with the court as to whether the civil plane or standard or the criminal plan or standard applies here and the tension between those places seem to be a good time to argue that having heard the court say that i would say that the trial court certainly erred just on its own by not knowing or not wanting to engage in the in the disposition hearing or perhaps not wanting to continue it for that dispositional evaluation or to be candid the phrasing of the statute seems to suggest when it when it talks about the option of the judge to ask for an evaluation it could be misread by somebody who had done a lot of these cases in the saying that it really is the option of the judge whether he needs any more information before deciding the disposition and as i read the record in this case and in the briefs it occurred to me that might have been the problem well that could be the problem but the statute goes on to say there are mandatory things to consider right and then that confusion may be ameliorated by the statutory direction to consider some things some other confusion the courts of encountered before as outlined in the in the title back in the winter hall for a case but in both of those cases all of the statutory information came in theater only asleep during trial and so the court did have that information during trial in those two cases so  conclusion i would say that the we would ask the court first of all to remain on the matter for a fair trial where mr dodge would receive an effective assistance of counsel falling short of that we would ask that the be remanded for any meaningful dispositional hearing pursuant to section forty thank you  thank you very polite during the last half hour but would like to hear from me again i'm josh i come back from the attorney general's office of behalf of the people of the state of illinois and this case in this case respondents claim of ineffective assistance of counsel should be rejected for two main reasons first because responders unable to identify any prejudice from his counsel actions and second because counsel provided adequate effective and competent case adversarial it was complete in fact chronic did not apply because of presumption and the court subsequently in the cone decision clarified again that they chronic applies only work counsel's failure is complete where the challenge is instead to destroy discrete actions of counsel that are best evaluated in the context of the facts of the case to see what sort of effect they may have had on the trial in the traditional test of strickland v washington applies those are the sort of errors that are errors in chronic that there is identified to fall into that center errors of such a type that it could never be effective professional representation being absent for parts of the trial there's no way that that council is affected that there's not prejudice the council of guilt situation the situation you can look at it illinois cases applying the standard and see the kick situations where counsel failed to conduct any cross examination or to make an opening or closing arguments or of the case that respondent has relied on people because last gate where the counsel relied on a defense that was unavailable as a matter of law i do want to point out that that is not the situation here counsel under responding has argued that his counsel misunderstood the law that's not clear from this record what he points to as evidence of that alleged misunderstanding or statements by other participants in the trial the counsel simply failed to speak up and say oh i think that's wrong i bet it was in the situation  the attorney made multiple statements on the record suggesting that he believed that consent was a defense to an aggravated criminal sexual abuse case and in fact was corrected by the judge at a couple of occasions and persisted with as his sole defense something that was likely to re offend if i understand your argument is although the heat theory that he was using a system on the perception that sixty year olds they had no evidence sixty year olds really offended that he had somebody near the age of sixty who's trying to use that as a hook to suggest that this person didn't have a substantial likelihood to relive that yes and he actually did that quite effectively if you look at the cross examination of dr royal when he got dr royal to make two significant concessions first that there is a certain significant age for offenders after which they are such less likely to re offend that age is when they have fifteen years of occurs when you're forty five i mean i hope none of us in this here are in that circumstance without knowing it but but regardless it was an effective way of establishing that it wasn't just a matter of being sixty it was a that certain significant age after which he'd be less likely to re offend so that did put some doubts into the minds of the jurors it did undermine the state's case not enough given that there was ample other evidence but it was an example of well what was an effect strategy for counsel in life was a very very difficult case and difficult record he was dealt and that's also why there's no prejudice in this case he look at this state's evidence in this case it is really quite significant as as your honour's no doubt know the three elements that the state needs to show were amply shown here for prior convictions which were all introduced when she did that's not an issue right so the evidence was very ample here there were that she diagnosis and both opined he was substantially likely to re offend in light of that it's responding needs to show something that would say this there could be a different result here there is an argument that we could make that response was not a suitable candidate or the respondent was not an  sentence and didn't ask anyone whether they had any evidence to present that such a hearing you know was a hearing where you know use the word hearing because you're claiming it is one where he's stuck to the hearing by because the judge has seen this has had substantial evidence from the course of the trial proceeding in order to assess the disposition of factors and make his determination how is he hearing possibly fair with the judge not only brings in his mind but express says to the lawyers that he has heard sufficient evidence and he's he he knows what he's going to do in essence before he even asks the lawyers which hear during the course of the trial itself there was ample evidence a deuce that was relevant to the dispositional factors and that evidence was tested by respondents counsel so the court had heard a lot of evidence that was relevant to the nature and circumstances of the and because counsel could not have been clairvoyant and predicted that he had a basis to insist on a continuance counsel was not a factor for not doing so and furthermore there's nothing in this record to see just that there was any evidence that could have been presented continued dispositional hearing just show that respondent was not appropriately sent to secure confinement as opposed to conditional release especially given the facts that he did suffer from a mental disorder that he was seriously like and that he had not sought treatment and in fact did not believe that he needed all that evidence came in during the trial and was subjected to to the public a possibility of vigorous cross examination and it was in the record so there was plenty he it out and then say oh it's well your honor first of all it was it entirely reasonable decision for the court based on the law at the time prior to the fields decision to determine that it didn't need to have a dispositional hearing because it had enough information  this position would be appropriate so even if one didn't have to have that dispositional hearing they stopped his understanding of a lot that was not reasonable in the context of this case with somebody nearing the age of sixty given what was heard at the from the two witnesses of the trial i think it's reasonable in sac exactly in light of what was heard from those two but this is the trial and given the testimony  witnesses it was clear that respondent should be in secure confinement and not under conditional release as the judge expressly found when someone has a mental disorder and resolutely has not sought treatment secure confinement is the appropriate disposition the court did have enough information to make that decision and it made the decision i think in this case the absence was sufficient and what's more there's no nothing in the record to show any evidence record and so we're left with whether there is substantial i mean he's about the procedure that was employed in this case given the of the backward i think it would be a poor option to instead just presume prejudice because we don't know what for instance counsel strategic choices were or what evidence could have been induced if counsel had done so reaching the issue that was raised by i don't believe it's necessary to be said issue because it has never been raised it is forfeited and what's more i think that just because actions in this case were appropriate with regard to just positional hearing and i think that's clear from the record and from the briefs that the court already has obviously if potential jurors and their response of mr questions whether they understand english and indeed the court found that these jurors understood english after examining them for several pages of transcript about issues like their education their health their family their legal history and their hobbies the core pound book cases that the witnesses understood english no one disagreed with them not the respondent not the state and indeed the jurors themselves were given the opportunity to raise their hands if they didn't understand any of the principles of  service neither of them get sout they understood what they were serving wish and they understood what they were supposed to be hearing as chairs as to be this misstatement in the opening opening statement that responded would testify well it's clear from the to testify this court has previously held in people these tops two ninety three zero at three hundred thirty nine that it's not an effective assistance if that's what your client told you i'd also point out that the jury was instructed to that is should not consider the fact reason that arguing otherwise is that there was a mention of the deposition in the transcript which the people the hour took to be an attempt to impeach counsel explained that he never intended to impeach both people and if the court excepted that representation disposition of this matter and  appointed to do his motion for a new trial we were not appointed to do a motion to reconsider we had no ability to draw a new record to put on evidence to show anything at all with regard to the conditional release hearing a disposition hearing cross examination is manifestly different if you're trying to get with you listed but the proper placement would be when you're questioning that witness on the stand may be counterproductive it may indeed be counterproductive the case is the counsel refers to our title back in winter halter in both of those cases which were interpretations of section forty and whether or not you can do an immediate disposition hearing in both of those cases that evidence came in during the trial of those opinions will say that so it was held to be not error because the court did have that information in this particular case the record is absolutely clear the trial court makes this finding based on two things he says he's not in treatment disposition hearing being a whole separate thing than the trial it needs to be a whole separate thing because there are different statutory factors that are required to be considered that is justice epstein pointed out the keep the factors in section forty ason that you didn't raise outside of the argument of in effect with assistance the purported failure of the court to have this hearing  technical reason of not raising there was as i mentioned before the difference between the civil and the criminal standards or was plain error if we are to look at the civil standard you know you're very far with that we do not and impact on what the standard should be in fact samuel son from the illinois supreme court clearly defines this as extended incarceration but there has not yet been a decision that shakes they have particular issue and you didn't want this to be