kir and civil detainees in the facilities where they're at all of them are free trial detainees currently and there is no effort being made but just to restore them to fit are you saying that the  civil commitment trial could not go forward or were that part of your claim that it could not go forward given their current current mental state they are not able to assist counsel they do not have decisional capacity if you do you know whether the state is intending to right medical assistance for your clients the first would be to restore them to fitness so that they come back but i mean there's an implication there that without this proceeding they wouldn't be restored if it is that's correct there's no nothing going on right now to help them there is not they are merely civil detainees at this point pretrial none of them have elected to take treatment so they're not being treated for anything you sexually they're being warehoused they are being treated in order to manage them in the institution but they are not being treated the way for example the department of human services at the forensic unit at elgin would treat someone to try and restore them to fit well if they wanted treatment dad isn't it true that they could receive treatment if they knew they needed treatment yes but how how was that going to happen i'm sorry how is that going to happen that they knew that they needed treatment they would have to be remanded to any forensic center instead of the detention center to be able to be restored fitness just as any other unfit responded would be or unfit criminal defendant when a criminal defendant is on fit  often they do not know that they need treatment they go out to the forensic center they're treated and they move on from there these are not here to all disabilities that these five people face there is a history of them being found unfit but there is also a history of them with proper care being restored to fitness once they're restored to fitness they're able to cooperate with counsel the ribble to understand the nature of the proceedings that they're facing they're able to make to have decisional capacity to exercise the seven rights that are statutorily granted to them under the s without being restored to fitness they can't do any of that they don't understand why they're in court they don't understand how to make decisions they don't understand how to cooperate counsel with regard to the cooperation with counsel aspect that's critical some of these cases go back twenty years that are being used to institutionalize them the court is from lawyer with the record keeping system in cook county it's not entirely reliable going back twenty or thirty here for example mr week proceedings and what they're allowed to do is put two experts on the stand one from my person of corrections and one from department human services that is done either a personal interview and a records review or just to read they able to to even go forward with those thought that they were unable to understand the nature and import of the advice of rights and waiver form so they didn't even attempt to engage them so that their point we've the illinois department of corrections in gauging governmental action declining interview the respondents in depriving them of their right to talk to them based on the the psychologist assessment that these people are too disabled to talk to for example mr edwards was actively responding to internal stimuli as was mr head as they sat there talking to the back and this was in illinois department of corrections in a place where you would hope that they were getting some sort of at least management medication to keep that from happening that wasn't is there any evidence that they could be restor thoughts in order to be convicted of the sexually violent offense it's necessary to be fit so for another five individuals have already been remanded for treatment for restoration of restoration three we all know the differences between a criminal trial and a civil committed action the criminal trial the person is presumed innocent and all the other constitutional protections that are there you don't have the same sort of constitutional protections in a civil commitment except to those that are statutorily enumerated and you've listed the seven but this pretrial fitness determination is that among them and the question is maybe the legislature needs a trial like this if one should ever go forward and reveal to it that a trial of an unfit defendant is inherently unfair and unjust and a maybe that would trigger actions that would provide for a fitness hearing free trial because right now the argument is at least that's how i understand it that as a matter of wa there isn't a provision for this and that's certainly what the circuit court judge ruled well there is not a statutory for you but if in reading for jeff united states supreme court case look hoover versus oklahoma that's correct and if we look at the standards and if we look at what is what these particular respondents are facing their liability is far more egregious than any criminal liability that a criminal defense liability one of the things that is in and you know i don't know about that statement because to some extent you know they've heard of the certain consequences that are follow them by virtue of prior conduct they referring to the street these are the wanted to strip away the rights to fitness of the legend the statute as it stood before simply said that respondent should have all rights that accrue to a criminal defendant like that that could but usually include it isn't your legislature because it it appears as if they've decided that we're the civil commitment proceedings that's not something that they want to have if i would not disagree with the court and it's clear that they you know rate of seven specific in that particular case with the fourth district said was this is a criminal case you don't have any procedural due process rights other than what about i'm sorry but i misspoke they said it was a civil case happening in a criminal environment and as such there is no procedural  actors there's three right that's correct and as far as the first two i think if i can return acres just for a second the other part of their decision was that they mingle all mental diseases the s p p act does not do that and that's critical here the s p p act the second and third elements of the requirements to be on the net they do say you have to have a mental disease or defect but it has pedophilia those are the things that cause people to react yes so what we're kind of your point is my point is that akers commingled any mental disease and said that under the s d p act any mental disease would be fine a couple of things to consider there the majority of those cases did not to a matthew's analysis because they did not proceed by way of a procedural due process claim they resolved that simply on that this is a civil case we're not going to do anything else the three states that did resolve it on a claim would be california washington and i believe massachusetts all the s v p statutes in those states are different for example in washington you have to have a pre was there was of scouts in case i don't believe that that case used the due process analysis that would be what we've got here is our own unique steps you and if we turn to that reasoning for example and more which is that isn't it what more stephen getting away from the argument though if you're saying that these three other cases turn down the uniqueness of their s p p legislation and you're now looking at the legislation here aren't you in fact getting away from the due process or procedural due process  is their private interest at stake even though as i think we can get yes the first day the first met then we come down to the erroneous deprivation of liberty if i as a trial lawyer and money able to talk to my client who was facing perhaps a lifetime commitment there is a significant chance of erroneous deprivation of liberty if he cannot make that choice to go in and have a jury trial or a bench trial if he can't decide whether he wants to testify or not the well the court isn't concerned about it being a criminal case as i said before the penalties here are much higher and for one very important reason the only way to get discharge or conditional release from the d h s is complete treatment etc except the review is  hand and at any point during that review if the individual has in fact demonstrated sufficiently sufficient progress on lifetime commitment for example mr harris been part of human services custody at the treatment a detention facility for ten years let me tell you the problem that i just he started with the question then i ask you before you know what evidence that you have th person could be restored to fitness based on things you know that are called understanding that's accept that's correct and unfortunately but that wasn't given to us well then that's because and that's why we are here on a rule three zero eight appeal because it wasn't given to us we asked for a fitness evaluation we don't need that you sign a fitness evaluation you had certain evaluations here you could get that type of determination from the people who examined that unfortunately under the statute that's not allowed to evaluations under the statute and it's constructed it's interpreted narrowly or just to determine whether they are a sexually violent person i would suggest that both  of the psychologists that made findings on the two individuals that they did not interview actually went beyond the statute because the one darkness of least with regard to mr heter said mr herder should remain in the department of human services where he was previously committed under a civil commitment by illinois department of corrections but was anything done to be able to obtain such an opinion yes we asked for the opinion the trucker we asked for if it is a valuation because we had a bonafide doubt that about an opinion t show that they could be restored to vic the only way to get that if in the opinion is through a fitness ophelia way bet is what if it is available do will say whether they can be restored to fitness within a year and then if they can't be restored to fitness within a year other procedures you can under either the criminal code or the mental health developmental disability so and i would agree with roger i would have loved to have an evaluation determining fitness with these respondents that was denied to us by the trucker so i don't have that evidence to present because we were precluded from abusing oth to a very very small percentage what's a petition is filed course we have the initial review of the order of detention probable cause of you and all of the section twenty five rights at the trial find a fact when the source of that fact is unavailable to you or at least part of the source of that fact is unavailable to you and certainly it's unavailable when the defendant can death and it was on a helpful even to go through an evaluation for purposes of a civil commitment much less a fit and we say no we won't allow you to we won't allow you to evaluate fitness because that is provided commitment is we have to keep in mind it's just another form of civil commitment much like involuntary well that raises the question why not go that route if that's the route you think is identical time go that route because if there are differences then certainly the differences in terms of the consequences of being labeled a sexually violent person by a jury the legislature h or the defendant the civil defendant is unfit for trial the legislature did address that particular situation did not address its midsts if equipment then you have to keep my butt to the legislature tell us that this is a provision for another fitness hearing to determine whether or not that person should in fact be committed civil and the judge would say i'm not committing this i'm committing this person civil for word forty eight hours seventy two hours of some short period of time until i get to be persuaded that he's a threat to himself or to others and of course you do that by way of an evaluation and the problem here is that they're saying no we don't even want to provide you with that information for purposes of being labeled a sex violent person which as his counsel indicated far greater that treatment would include getting the person fit getting those who are unfit fit for strong and yet you're saying that now they're saying that they're not they're not they're not receiving any kind of states there's no difference between protecting the public by having an unfit responded you're protecting the public either way whether the person is unfit or whether the person is really  saying instructed i'm saying are good i'm not saying that they're going to be instructed i'm fit i'm saying that's the argument that they're going to put forward that it's your bird proved beyond a reasonable doubt that this person is a sexually violent person and they're saying you know what we don't have a doctor coming in and testifying because the guy yet according to the doctors to be even evaluated and that we have we have a reasonable doubt that he's sexually violent person and he's that there's not that there's an energy  and then that is the i think it is for the sexually violent classification of this individual and if he's restored to fitness then he's released and then he's out the side of him who knows what could happen measures for individuals don't exist in the context of regular civil mental health and it goes so far to allow in the instance of eight responde thank you very much a very interesting case of research very good the arguments are very good and will take the case of your