the orders pacifically indicating that the respondents presence was wait there is no factual issue in this case with regard to whether they respond that actually was aware of that that is what the trial is all about there is no other issue and so the argument your honour's by the state that nothing substan because it wasn't just in order it wasn't just a motion for discovery meaning of something that already exist it was a motion and an agreed order was procedural in nature and therefore it's retroactive how do you respond to that your honor i respond with with us what can be procedural about the new evidence as actors to  found that it wasn't a substantive hearing it was merely discovery as opposed to anything substantive in form and as a  situation here where the state can't pick and pay for expert and also here on the record is clear this record marsh march thirty first one of the state filed a motion may please the court and brian lynch from the attorney general's office on the happy people of the state of illinois this case begins and ends with the fact that at the time of trial the people had a statutory r interests and do you see experts the statute was signed on the issue and for the purposes of this case we've assumed and conceded that it was a matter of discretion for the trial court so there had to say had the ok if there was no right and the and the statute says that the depend the department of human services in the deal se e doctors can be called by the the respondent as his that's for so that there is no right it looks like under the statute for the state to responsible no but but technically he was your doctor i mean he wasn't testifying in your favor but both of those doctors are employed by the state their employee by the state they were not always witnesses by the state and i think that distinction do is figure out for myself whether this really is a procedural or a substantive change in the law and it seems that if he state is acquiring a right that it didn't him for namely to him an expert of its own choice that it pays to present the evidence with regard to the defendant that it changes the character of the of the proceeding it certainly is it is an important amendment and it may indeed change change some of the results of some proceedings however that's true of any eviden rule this is a rule that allowed a certain type of evidence namely evidence from a state retain expert to come in and it also has some discovery aspects because it allows the state to discover particular information from the respond but both of those things are procedural and very important and they can often transform cases but that's not that the procedural substantive distinction that this isn't and then this is a rule that allows  way someone right also entitle then to waive response presence because counsel is the one that's going to make the determination there's no real advantage necessarily for response be there but even more basically than that this is not a theory and respondent suggests that the question about whether it's a hearing is whether it's you know a substantive hearing or whether it's pro forma that's not the case if respond any victory of any kind second and more importantly trial counsel state purpose one of his main stated purposes for dreams of motion was that he wanted to avoid trial and he thought that if d that respondent going to board trial it was reasonable for counsel to pursue that strategy a full day or including allowing this expert even though the experts would have been split without d grew the fourteen year old neighbor boy and engage in oral sex with him that these are not good facts to present before a jury so it was reasonable for counsel to try to avoid that jury trial and counsel  indeed find that was fine it was not an s u v so it was not sufficient performance for him to agree to the motion reason to think that you would have done well on conditional release and it was not an abuse of discretion for the court to order him to be committed to secure custody since she brought it up what was the nature of the horse like the horse play it's unclear exactly from the record it's it's unclear from the record that respondent suggested it was very minimal i think there was  responding as i think a person that was fun described as as his boyfriend was in response room and there was something of some kind of force play i'm not exactly sure the nature of the horseplay and i'm not sure that's on the record in both the sexual misconduct was there any indication of violence involved in that or was it consensual there was no indication of violence involved in that and yes i believe it was consensual the question i just don't know how to frame it as i can wait i'm going back to the nature of these proceedings oh i've not had a case like this before so i'm i'm kind of feeling my way along here the proceedings as i understand it the defendant has the respondent has been convicted and incarcerated and he's due to be released and the state comes in and says we have some reason to believe that he will likely re offend when he gets out  so we think that he needs to be kept in but in a in a treatment program not with officially within the department of corrections and the basis for this recommendation is some observations that have been made by the department of corrections people that sort of pull him in there only suggests that maybe he needs to be kept locked up for an additional  evaluation and that's what dr royal performed so this is before the probable cause hearing dr roy performs a a full evaluation and his opinion was that respondent was a sexually violent person then it goes for what we're dealing with is i don't want to say speculation because i think it's stronger than that but some indication within the department of corrections that this is somebody we yet and it and it seems to me and i mentioned before that it seems to me that it's changing the character of this to say that now the state can come in and bring its own additional witnesses that it's no longer now the assessment of the people within the department of corrections and that defendant under the statute can have expert testimony and can use the state that's where it's as his witnesses well now there's something added the there's there's a new confrontational aspect by the state into this is is that fair know i was unclear whether the state was entitled to present or and whether that i disagree that it changes the nature of the proceedings it only changes but before arguably the state was another expert and i don't think that changes the fundamental nature of the proceedings that what the state has to prove is the same the that all of the standards are the same that the discoverable if the discovery rule is the expert has access to respondent and the adventure role as the expert is a lot of testified and if you added if you if that statute were amended to allow them to have three point court appointed experts or two from the courts of point three experts at response requests that also would not fundamentally change the nature of the proceedings it would change the evidence that responding is entitled present and the method by which he's entitled to access that today he will be listening to the tapes and participating in the conferencing in this case so you will have a full panel who will be a valuating the arguments here  the change that occurred january first twenty alone again allows the state to hand pick a time of their choosing to evaluate the response not just for purposes of raising this is a as an additional argument or additional authority then the state would be entitled to an opportunity to file something in writing in response to it if they would would you like to do finally i disagree with opposing counsel that isn't this all just moot because as of january first twenty eleven the state had the absolute right to have an expert of of their choosing evaluate the responding first of all that as february how much time would you need seven days and would you like an additional seven days to respond to reply thank you we will note that in the minute order