reverse the name of the town or indicating that he is essentially a violent person in need of commitment and three man this case trial to madison county on the issue of whether or not he is actually a violent person in need of commitment and frankly i have to admit that with what was before the trial court the evidence that was there was probably sufficient but the problem is the backbone of this as any good litigator knows what goes on is really the backbones of the case and the strategizing and unfortunately what happened in this case and i will tell you this is a hard case for me to make i kind of dreaded coming down here today when i first was assigned this case by chief judge hella and read through it you know i knew it was actually a violent person commitment and i really figured it was going to be just a challenge to the sufficiency of the evidence and that's i read through and i realized that a big part of it was what happened as far as mr delaney's representation  hall i was taken aback i've known mr delaney for thirty years those of us who practice in madison county know him to be one of the best criminal defense attorneys that that county is i mean it was during my tenure and as i read through it i thought this can this this is just unbelievable to me good attorneys don't make mistakes like this but the reality is good attorneys do make mistakes and it wasn't just one mistake it was a compounding of multiple errors throughout the cause mr hope to not get a fair trial for evidence to come before the jury and for him to be committed and want to stay convicted because in reality although this was not a criminal proceeding it was a walk in sheep's clothing clothing pardon me the effect of the saying  can't leave the rush for treatment facility whether it's a prison cell or a cage or not being able to leave a treatment facility he's essentially being sentenced again and the evidence that was before the jury should have gotten there in the first place and if mr delaney had provided him  me to come down here today because of mr and the lady's untimely and sudden death last month to be sitting here before you and saying he didn't do a good job but the reality is again we all make mistakes you give me any litigator who says they never made a mistake in their career and i will give you a liar because it happens and in this case it happened there was no remedy for mr holt he doesn't get to bring a malpractise proceeding i mean if this were you know a case for damages that would be the remedy but the remedy for mr holt is that he gets a new trial and he should get  new trial let me go through some of the things that were problem at trial and in the pretrial proceedings that cause mr hope to be convicted and that our evidence of mr delaney is lack of ability and acceptance to begin with mr dooley waived a probable cause hearing now why would you waive a probable cause it's similar to a prelim hearing we really we were a preliminary hearing is regular lea in criminal cases but when not when the stakes are high like this and  waive a probable cause hearing that was problematic even more problematic was the fact that when mr delaney requested a fry hearing and was denied it he didn't request a court reporter i mean who goes to a hearing on a criminal case and doesn't request a court reporter especially when the stakes are this high and again i say it cannot as i understand that this is a civil commitment proceeding but the reality is that mr holt is suffering double jeopardy because everything that was used to find him to be an s p p a sexually violent person were the same things that were used to convict him in the first place thirty years earlier he essentially suffered double jeopardy all we have it or inflammatory descriptions to the jury that essentially amounted to double jeopardy it's a bootstrap argument the way they had him committed at the s p p they used the same information that they used or that they would have used he did a plea plea agreement when he was convicted thirty years earlier but it was that same information that was before the jury details of really heinous crimes i mean frankly i read through it and it made my skin crawl i mean it's awful i mean i'm a female i think i listen to this stuff as did the nine female jurors and they were probably sitting there thinking oh my gosh who wants this guy on the street i don't want to run me i don't want to run my friends i don't want to ruin my daughter's but that information should not have come before the jury in the first place and it came repeatedly again and again and again and mr delaney didn't object why wouldn't you object you didn't object he didn't object because he was not doing a good job for his client my client was he was not afforded effective assistance of counsel and pursuant to due process requires he had the right to have that this case might not have been won by the state he may not have been convicted if that information had not come before these jurors he was denied a fraud hearing we don't know why we don't know what the reason is he didn't request a court order i mean frankly when i for why would you not preserve the record you know why you didn't preserve the record because he wasn't doing his job properly again my client was not effective assistance of counsel we may know why he was not a fry hearing what went on if there was a record there there's no way to review this when he was denied this right here in the state then filed a motion in limine a day for three motions them and one of them was to prevent mr delaney from mentioning during trial before the jury and i think that was problematic and was another instance where he was deny the fact of assistance of counsel my client additionally we have a situation where one of the motions in the minae really prevented from mr delaney from even challenging dr balu smith or her credibility because he was prevented from mentioning an earlier malpractise action and a complaint i believe to the healing arts or was she was essentially found to have been indifferent to her patient mr delaney committed further on there are further indications that he did not effectively assist mr holt in his defense he made some comment before the jury at the end about the i'm sorry i just give up now the state court trades that as a joke this isn't funny it's really not funny why would you say that  it's an indication that you really don't believe in your client he filed a two sentence motion which they called i think they said it was i'm not a monument to brevity i mean they just did not seem to be the interest in the you know the guide that we saw usually from a good criminal defense attorney in representing mr holt when he lost the case he found a post by motion and it was it was a pretty good post from motion he actually indicates and that i made mistakes you know  that there were just mistakes by defense counsel it was a good motion we have no idea what the basis of the denial of the motion is judge harrison did really a simple order that didn't even really address of the just indicated that he would be committed the state wisely filed a motion i believe to strike it why because he found out of time he didn't file it by day twenty nine or thirty he filed it i think it was four months and three or four days after the trial and the finding that he was in s p p you file a post by a motion so far out of time because you're not doing your job properly if nothing else while that two sentence motion that was the monument to bradley asking the court to reconsider and then when you have time file a motion it in more detail that wasn't done the points in his post try motion of that actually been addressed properly and again we don't know why judge harrison denied it i mean it probably was properly denied because it was so far out of time it would be as if i file an appeal in this case six months after the court made its final decision holt should get a fair trial this court should be reviewing whether the changes between d s m three and d s m four which happen over the time period when they were evaluating him and then when they actually had the s p p here and if the changes were still making his diagnosis acceptable in the scientific  that was never done there's no reason to deny him a friend hearing he is essentially being sentenced again and while that may be appealing to the general public because of what happened in the past the fact that this trial everything in this trial was informed by his prior crimes there were thirty years ago and that's what was used it was so highly inflammatory to the jury there is no way to know if he was actually found to be in s p p because they found that he has a diagnosis that makes him likely to re offend or if it was because of his past lives that they were so much a part of it i mean it really was a brilliant strategy by the state i mean it was kind of like a one runaway train mr delaney wasn't doing he wasn't doing a good job i'm sorry i just don't know any other way to say i don't want to be disrespectful but he didn't do a good job he just let everything there was a serious what is that the lemony snicket spoke a series of unfortunate events but unfortunately in this case mr holmes has now spent five years in the rush for treatment facility we had an expert his own expert and one of the experts for the state at one point even indicated that he could receive treatment within the madison county community that there was a sex offender prevention treatment refence treatment that he could have and the answer essentially was that well we don't know who do ok because he's been in prison for thirty years but once you don't he's been a prison for thirty years i mean we know that that's what he was sentenced to isn't there or wasn't there just a moment  than the waste time treatment to justice by barrister with him there was testimony to that effect i believe there was also testimony to the effect that those classes there were so many people there needing treatment that they were difficult to get into and they took time to get yes but there was also indication it was difficult to get into treatment and he did comply and he did get into treatment and was compliant we also have experts indicating that he would be a good candidate for outpatient but whether and if i may with all due respect whether he complied with treatment or not i think that has more to do with whether he would be more appropriate for residential or treatment in the community as i guess an allocation would be the best way to describe it not whether he should have been determined to be an s v p for commitment in the first place i mean i think the common is before you even get to these questions you need to look at the way we need to look at the way this trial unfolded and just the series of unfortunate events be walking in my car night and knowing that somebody like that is out there you don't want to bring your wives daughters friends it i get that but the problem is and it's hard i mean it's hard as attorneys even not to go back to that we go back all the time to the underlying crime he was convicted for those he was sentenced pursuant to sentencing guidelines and in illinois the way it's supposed to work is to do their time and then you're done he's essentially being sentenced again and i understand that under the commitment proceedings it's supposed to be whether or not there is a substantial likelihood of re offense based on a mental condition and i get that but there it's a bootstrap you keep going back to the fact that he did it everybody and i don't mean you personally  apologize to be disrespectful we keep going back to the fact that he did this in the first place if he's not accepting responsibility is he going to do it again but we never had a chance to question into the details of the diagnosis and how the particular facts fit into it because no final hearing was good and there needs to be a fry hearing i'm not saying that you're wrong you may be right but the problem is we don't know if your assessment and what the assessment of the court was in this case is right because we didn't have a fry hearing we didn't have objections and the things you're saying these gory details which pop out i mean they're like graphic things you hear on the news and to be honest with you i think it's worse that we had these descriptions without seeing the pictures because the mind runs wild when you hear these things and i think of a jury of nine women what they must have been doing it shouldn't be in there in the first place the problem is that the way this case happened and the fact that all this information was before the jury that mr delaney didn't question it that we didn't have a chance to look into how much of the diagnosis and doctor believes smith's doctor travis's opinions that really were based on these prior crimes how much that was part of the diagnosis we it wasn't question my point is this he needs a new trial handled by an attorney who is on the ball was effectively assisting him who's making a record that's what needs to be done the what should be in the record a record at all that causes me that caused me concern when i first with a sign of interest i mean i have the benefit of knowing and having worked with the mr delaney who i'm sorry as to hong john because he's been throughout this you know throughout their arguments their opening their examination in their closing that they you know engaged in highly introduced highly prejudicial information mr delaney didn't object what am i supposed to cite every time they said something the fact that he didn't do anything but he answer your question i don't know that there's anything there besides a lack of it i think you're also asking me is there anything from any other cases that have gone on during that time period and i guess a i don't know if i don't have an answer to at that point i mean are you asking me do i know anything from personal knowledge and just from being in the matter think county community i don't know i mean if you're asked me i don't answer i'm not going to say anything without you asked me if i am feel like we're treading the line of what ok because it's critical here you think is not that is he committed crimes in the past and had criminal thinking in the past respondents current thinking remains criminal and he continues to suffer from a mental disorder particularly his anti social personality disorder with making the poor candidate for treatment in the community dr travis testified the community based community tends to be with low or lower risk benders and they just don't have the same level of risk or our needs in fact needs plus there's less treatment available in the community probably about half or more or less depending on what he said usually a sex offender community based treatment can get about houses seems to suggest that there's some kind of a four zero three balancing that has to be applied to the basis of opinion tests and there's no there's new authority for that proposition at most because if it were wildly unreliable if the experts relied on something that was five degrees of hearsay or a rumor perhaps the court could exclude that but the doctors testified to that these are the kind of records and he listed all the records y prejudice it's just no reasonable probability again that absent council you know how schools minor errors that the result of the proceedings or the disposition would have been different the elephant in the room the prejudice is the fact that my client is committed to the rushville treatment facility it's essentially a prison just a different type of person it probably looks nicer the more he spent thirty years in incarcerat but the reality is had he been given a fly these diagnoses that the state got into very i mean graphic detail about during the trial would have been question we would have questioned the basis for the the various experts opinions and they were all based on their interpretation of my client's recall of times thirty years ago everything goes back to the crimes from thirty years ago and essentially what the state is advocating is a lifetime sentence and that's why it may be that offenders who commit crimes like mr holder thirty years ago should be sentenced to life in prison and  really maybe it's not such an awful idea but we don't with this way the legislature changes the sentencing guide the trial judge would sentence mr hobbs that we don't have him serve his time and then the sensually be reconvicted or in this case committed is a euphemism for conviction again based on the same crimes we don't know how much of the s p p commitment has to do with his past crimes or the diagnoses and in the next is that because of this he's going to do it again and we don't know that because he didn't have a five hearing the only questioning that really went on of the experts the trial was by the state delaney did very little i mean i don't know if that was ineffective assistance or the chilling effect from the motion in limine a being granted and him being told not to mention the frye hearing we don't know but i guess my question is this if the states are confident in their position and can really make the jump that because of his mental disease or defect or a psychiatric diagnosis there's a substantial likelihood that he will be sexually violent in the future the must do the firing let's do a probable cause hearing and let's give mr holt effective assistance of counsel and see if you really belongs in the rushville treatment facility is reached that there we whether there is or there isn't we don't know how any differences actually of fact the diagnosis in regard to mr holt additionally the terms that were added with d s m five there could be an argument that there unconstitutionally and i mean you can throw anybody into it but whether whether the difference in terminology or the difference in i guess the diagnostic criteria they call them axes with the d s m in their interacti whether they apply to mr hope we never really got to explore that because of the denial of the five year and i think with the change between d s m four and five over this time period and the fact that dr believes smith when she testified she didn't even know have a fry theory and a new trial but it it appears from the records that the basis of these diagnoses is all based on it's all based on  and the past crimes it's a bootstrap argument we get we keep convicting him again and again everything goes back to the past clients and the highly prejudicial inflammatory nature others heinous crimes that we just we really don't know but as far as