2018 IL App (4th) 170771 

NO. 4-17-0771 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v. 

TISHA BRYSON,

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Douglas County 

No. 15CF115 

Honorable 

Richard L. Broch Jr., 

Judge Presiding. 

JUSTICE DeARMOND delivered the judgment of the court, with opinion. 

Justices Knecht and Cavanagh concurred in the judgment and opinion. 

OPINION

¶ 1 In November 2015, defendant, Tisha Bryson, was arrested and charged with 

attempted aggravated kidnapping. In January 2016, in a stipulated bench trial, defendant was 

found not guilty by reason of insanity (NGRI) and remanded to the custody of the Department of 

Human Services (DHS). In May 2017, defendant petitioned the trial court for a conditional 

release, and the court denied the petition. 

¶ 2 On appeal, defendant argues (1) the trial court’s denial of her petition for 

conditional release was against the manifest weight of the evidence and (2) the court erred in 

applying a different and stricter standard in its review of her petition for conditional release. We 

affirm. 

¶ 3 I. BACKGROUND

¶ 4 A. Defendant’s Hospitalization

FILED

September 11, 2018 

Carla Bender

4th District Appellate

Court, IL
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¶ 5 In November 2015, defendant confronted a woman with a small child, informed

the woman “witches” had taken her baby, and inquired whether the woman was a witch. Later 

that day, defendant entered, uninvited, the residence of people she did not know, picked up their 

two-year-old child, and attempted to leave, claiming the child was hers. When later arrested by 

the police, she contended the police car was hers and believed she possessed “angel wings.” As a 

result of the incident, she was charged with attempted aggravated kidnapping (720 ILCS 5/8-

4(a), 10-2(a)(2) (West 2014)).

¶ 6 By the time she was charged in this case, defendant had been psychiatrically 

hospitalized approximately 30 times in an 11-year period, and she was released from the hospital

only three days before this incident. Upon her release, she met up with a friend and consumed 

both “ecstasy” and alcohol, choosing not to take the medications, which had only recently 

stabilized her behavior. During a previous hospitalization, defendant set bed sheets on fire in an 

attempt to be removed from the hospital and taken to jail because she believed the hospital 

employees were going to harm her. This resulted in a charge of arson, which was reduced to a 

charge of criminal damage to property, for which she was on probation at the time of this 

offense. Defendant had a history of being noncompliant with medication and admitted regular 

street drug and alcohol abuse when not in a controlled environment. Although she currently 

acknowledges awareness that her usage of both substances exacerbated her psychiatric 

symptoms, it is unclear from the record how long she has possessed such awareness. Defendant 

was diagnosed with bipolar I disorder, current or most recent episode manic with psychotic 

features, the most serious form of bipolar disorder according to the doctors. She also has a 

criminal history, as well as a history of engaging in behavior, which threatened harm to herself 

and others when not stabilized with prescribed medication. 
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¶ 7 In January 2016, pursuant to a stipulated bench trial, defendant was found NGRI

of attempted aggravated kidnapping (720 ILCS 5/8-4(a), 10-2(a)(2) (West 2014)). As a result of 

the NGRI finding, in March 2016, the trial court held a hearing pursuant to section 5-2-4 of the 

Unified Code of Corrections (Unified Code) (730 ILCS 5/5-2-4 (West 2016)) to address 

proceedings after acquittal by reason of insanity. At that time, it was determined defendant was 

“in need of mental health services on an inpatient basis,” and she was ordered into the custody of 

the DHS, which placed her in McFarland Mental Health Center (McFarland). 

¶ 8 In May 2017, defendant filed a petition for conditional release pursuant to section 

5-2-4(e) of the Unified Code (730 ILCS 5/5-2-4(e) (West 2016)). She retained counsel, who filed 

an amended petition on her behalf in June 2017. In September 2017, at the hearing on 

defendant’s petition for conditional release, defendant called three witnesses: Dr. Monica 

Eberhardt, defendant’s treating psychiatrist at McFarland; Dr. Michelle Womontree, her clinical 

psychologist at McFarland; and Dr. Ryan Finkenbine, a forensic psychiatrist from the University 

of Illinois College of Medicine. The State called no witnesses, stipulating to the qualifications of 

each expert witness called by defendant. 

¶ 9 B. Dr. Eberhardt’s Testimony

¶ 10 Dr. Eberhardt, as defendant’s treating psychiatrist since May 18, 2017, saw her at 

McFarland five times, twice individually and three times during treatment team meetings. These

meetings normally lasted between 15 to 30 minutes. She testified defendant was not compliant 

with her psychiatric medication and was actively involved in street drug use during the time 

leading up to the kidnapping incident. Her drugs of choice included alcohol, cocaine, 

methamphetamine, and marijuana. Defendant acknowledged having previously used lysergic 
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acid diethylamide and on one occasion found herself wandering around Chicago with no idea 

how she got there or where she was. 

¶ 11 Dr. Eberhardt described defendant’s symptoms at the time of the offense as 

“manic symptoms consisting of elated affect, the irritability, paranoid delusions where she 

believed witches stole her baby, who at the time was two months old. She presented with 

grandiose delusions where she believed she owned the town. That later on when police arrived, 

she stated the police car was hers.” She characterized defendant’s symptoms as “very severe.” 

¶ 12 According to Dr. Eberhardt, defendant’s manic symptoms had “resolved” since an 

incident in October 2016, when a medication change resulted in a temporary increase in manic 

and psychotic symptoms. Dr. Eberhardt also noted defendant was no longer using street drugs 

because she was in a controlled environment where she had no access. However, she also 

admitted, in the past, when not in a controlled environment, defendant would stop taking her 

psychotropic medications for a number of reasons. Defendant said they “stunted [her] creativity” 

and made her feel “weird” or “depressed.” Dr. Eberhardt also acknowledged, prior to her 

commitment, defendant engaged in almost daily use of alcohol and marijuana. 

¶ 13 It was Dr. Eberhardt’s opinion the reason for defendant’s lack of current bipolar 

disorder symptoms was the result of daily therapy, which included the controlled and monitored 

administration of psychotropic medication, as well as individual and group therapy. 

¶ 14 It was the doctor’s opinion defendant had insight into her psychiatric illness and 

understood her symptoms would recur if she discontinued prescribed medication. Dr. Eberhardt 

also believed it would take 7 to 10 days for bipolar disorder symptoms to recur if defendant 

stopped taking her medication and within days if she returned to using alcohol or illegal drugs. 

The doctor said she had no reason to believe defendant would stop taking her medication. The 
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doctor also believed defendant had gained insight into her substance use and “she does not plan 

to go back to using alcohol and illicit substances.” Dr. Eberhardt explained how medications are 

administered at McFarland and the how the controlled nature of administration and monitoring 

would not be present if defendant were not in a controlled environment like McFarland. 

¶ 15 Dr. Eberhardt was also of the opinion defendant understood how her mental 

illness related to her crime, appreciated the seriousness of the offense, and was remorseful. At 

the time of the hearing, defendant was in a minimum security unit where she had been since June

2016. She also had “grounds” privileges since June 2017, which allowed her to leave her unit for 

up to an hour after signing out and permitted her to walk the grounds without staff supervision. 

She had access to unfenced areas and had never sought to escape. During her time at McFarland, 

defendant followed most of the rules and had not disobeyed staff or attempted to harm herself or 

anyone else, except for an incident in October 2016, when she required forced, emergency 

medication after threatening to kill someone. It was Dr. Eberhardt’s professional opinion this 

incident occurred because of a manic episode brought on by a medication change due to the 

addition of an antidepressant. After the removal of the antidepressant from defendant’s 

medication regimen, her condition resolved. Dr. Eberhardt acknowledged there had been several 

instances where defendant’s attendance at therapy sessions was sporadic, she had engaged in 

inappropriate behavior with a male patient, and she had to leave some group sessions due to her

inappropriate comments.

¶ 16 According to an HCR-20 violence risk assessment tool administered in August 

2017, Dr. Eberhardt indicated defendant was assessed as a “low risk” for violence. It was her 

professional opinion defendant was not an imminent risk to hurt herself or others. “At this time, 

is [sic] [defendant’s] symptoms are resolved and she’s not using any alcohol or illicit substances. 
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She’s compliant with treatment.” It was also Dr. Eberhardt’s opinion defendant did not meet the 

criteria for inpatient hospitalization; however, Dr. Eberhardt was not recommending defendant’s 

conditional release. She also indicated there were not opportunities for defendant to exhibit 

behavior outside a controlled environment since McFarland did not have an “off grounds without 

staff” privilege. 

¶ 17 When asked why she had not sought defendant’s release at this point, Dr. 

Eberhardt said she and the rest of the treatment team wanted to see how defendant did with the 

recently awarded grounds privileges first. They wanted to evaluate her performance with the 

increased privileges for “at least six months before [they] considered conditional release.” They 

were also interested in evaluating her behavior for at least six months from the last incident with 

a peer, which had occurred in July. Although she was of the opinion defendant was not at risk to 

inflict serious harm upon herself or others “at this time,” Dr. Eberhardt acknowledged how her 

violation of what might appear to be “small rules” at McFarland could mean defendant would 

not follow “big rules” outside. 

¶ 18 The extended length of defendant’s hospitalization has, in the opinion of Dr. 

Eberhardt, contributed to her stability because it has given her the ability to gain insight into her 

mental illness and substance-abuse issues. She noted how, if conditionally released, any violation 

of any conditions attached to her release would result in her immediate return to McFarland. 

¶ 19 When questioned further by the trial court, Dr. Eberhardt said neither she nor the 

treatment team were recommending defendant for conditional release because they were of the 

opinion defendant needed more time in treatment. The doctor acknowledged that some of 

defendant’s behaviors were concerning and further acknowledged, upon questioning by the 

court, defendant may be motivated to seek release from McFarland, in part, due to the pending 
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juvenile case involving her child and the influence her continued hospitalization may have on the 

Department of Children and Family Services (DCFS). 

¶ 20 C. Dr. Womontree’s Testimony

¶ 21 Dr. Womontree served as defendant’s treating clinical psychologist since 

September 2016. During that time, she saw defendant for approximately 11⁄2 hours per week in a 

group session, as well as another hour per week individually. She described defendant’s bipolar 

disorder symptoms at the time of the offense as “primarily manic at that time, and had delusions, 

hallucinations, poor judgment,” and disturbed sleeping. Defendant was not compliant with her 

psychiatric medication and was using illegal drugs. 

¶ 22 Dr. Womontree said defendant’s clinical condition changed “remarkably” since 

her hospitalization. In her opinion, defendant was “really taking her treatment seriously for the 

first time.” She believed defendant was committed to her treatment and was attempting to learn 

behaviors that would contribute to her continued stability. Dr. Womontree agreed defendant had 

been free of bipolar disorder symptoms since the brief psychotic episode in October 2016 caused 

by a temporary medication change. 

¶ 23 At the time of the hearing, defendant was receiving individual and group therapy, 

psychotropic medication in the form of lithium and Depakote, psychoeducational group therapy, 

and participating in a variety of psychosocial activities. Dr. Womontree related an incident where 

defendant had been hit by another patient and did not retaliate as positive evidence of her 

advances in individual therapy. Instead of reacting to the unprovoked attack, defendant was able 

to discuss it in therapy. After initially participating in Alcoholics Anonymous (AA), defendant 

was leading a group as well as attending. 
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¶ 24 It was Dr. Womontree’s opinion defendant “understands that she has a severe 

mental illness that requires daily attention in order to maintain recovery.” She said defendant 

also knew she had to take her medication without fail, realizing she would rapidly begin 

manifesting symptoms if she did not. It was the doctor’s opinion defendant’s symptoms would 

reappear within days to a couple of weeks of stopping her medication. 

¶ 25 Dr. Womontree said the primary reason why defendant had exhibited no 

symptoms of substance abuse was due to her presence in a controlled environment. She also 

believed defendant was “gradually” becoming more educated about the effects of substance 

abuse on her mental illness. The doctor was also of the opinion defendant understood the 

seriousness of her criminal offense and the harm it caused and she felt remorseful about it. 

¶ 26 Dr. Womontree agreed defendant had been in the minimal security unit since June 

2016 and had “grounds privileges,” which allowed her free access to McFarland grounds,

including unsecured areas from which she could walk away or escape from if she chose. Dr. 

Womontree also agreed with Dr. Eberhardt that defendant never attempted escape, attempted or 

caused physical harm to anyone, or required physical restraint while at McFarland. Dr. 

Womontree described defendant as being “exceptionally active” in her treatment, taking 

advantage of everything McFarland had to offer. She said defendant had been exposed to 

cognitive behavioral therapy as well as “rationally motivated therapy” designed to address reallife, problem-solving issues, and defendant has expressed her desire to continue individual 

therapy after leaving the hospital. 

¶ 27 Dr. Womontree was also familiar with the HCR-20 violence risk assessment tool 

and defendant’s assessment as a “very low risk” for future violence. Put in context, Dr. 

Womontree noted how normally, the nature of the historical factors alone is enough to place 
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someone in the “moderate risk” range, so the fact that defendant was considered a low risk was 

“unusual and outstanding.” 

¶ 28 As a result, it was Dr. Womontree’s professional opinion defendant was “not 

reasonably expected to harm herself or another,” and defendant could “benefit from continued 

treatment but as an [outpatient].” Dr. Womontree’s opinion was based on defendant’s active 

efforts toward treatment, “the actual stability” the doctors witnessed during her hospitalization, 

her “response to treatment, and her responsible approach to improving her life.” 

¶ 29 Dr. Womontree admitted on cross-examination, however, defendant’s risk of 

dangerousness would increase if she was not compliant with her medication, which would not be 

administered and monitored for her outside of a controlled environment. She also agreed 

defendant had not been given the opportunity to test her learned skills off McFarland’s grounds. 

¶ 30 D. Dr. Finkenbine’s Testimony

¶ 31 Dr. Finkenbine, a professor and chair of the Department of Psychiatry at the 

University of Illinois College of Medicine, testified as a forensic psychiatry expert on behalf of 

defendant. His task was to perform a three-hour, conditional-release assessment of defendant, 

which he did in August 2017. Many of his findings were consistent with those expressed by the 

two previous witnesses and need not be repeated here. 

¶ 32 When Dr. Finkenbine examined defendant in August, he found her “almost 

normal” and exhibiting none of the various symptoms of bipolar disorder seen previously. He 

was aware of her brief period of psychotic behavior in October 2016 due to the addition of an 

antidepressant known to cause manic symptoms in some patients, but otherwise, he did not find 

her to be exhibiting any of the other behaviors described by the other experts. He ascribed this 

change to proper medication, therapy, and counseling and believed, as did Dr. Womontree, 
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defendant had a greater appreciation for her mental illness and the need for continued 

medication. 

¶ 33 Dr. Finkenbine noted defendant’s long history of noncompliance with medication;

however, he believed her extended hospitalization, along with the education provided by her 

psychiatrist and counselor, have allowed defendant to better understand the need to maintain her 

medication as prescribed. He described three reasons given by defendant for discontinuing her 

medication in the past: (1) her pregnancy; (2) when she would experience side effects 

necessitating a medication change; and (3) poor decision-making when she did not want to 

continue taking her medication, which he described in his report as, “[s]he did not think she 

needed medications and liked some of her symptoms of mania (e.g., feeling ‘up’, more creative 

and energetic).” On cross-examination, he admitted mentioning in his report how, although 

defendant’s insight had improved, it was still limited. He acknowledged the large number of 

hospitalizations for defendant was unusual. His report noted how her history of alcohol and drug 

use “increase[d] the risk for dangerous behavior with relapse.” In addition, Dr. Finkenbine 

admitted despite being fully compliant with her medication, defendant remained unable to follow 

all of the internal rules at McFarland during her time there, including an incident fairly recently 

with a male patient. He also noted defendant has not had the opportunity to demonstrate her 

ability to remain compliant when not in a controlled environment and that her presence in such a 

controlled environment factors into her increased compliance. 

¶ 34 He said defendant had been free from symptoms of substance abuse for two years 

by the time of his interview. Dr. Finkenbine was of the opinion this was due, in part, to forced 

abstinence, but also due to defendant’s recognition of her substance-abuse issues, the various 

treatment programs, and counseling she had received at McFarland, including taking an active 
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role in leading some of the AA meetings. He found defendant to be intelligent and able to 

recognize the links between her use of illegal drugs and unfortunate events in her life, as well as 

understanding some of the things that triggered her substance abuse. Dr. Finkenbine testified 

defendant’s attitude and understanding of the need to stay off illegal drugs was “high.” He also 

found she had a “reasonable appreciation” of the harm her crime had caused and understood how 

both her mental illness and substance abuse contributed to her crime. At the time of his 

evaluation, defendant was on the lowest security level at McFarland, had made no attempt to 

escape, and had neither caused nor attempted any physical harm to herself or anyone else. Dr. 

Finkenbine reiterated defendant’s low violence risk assessment scoring. 

¶ 35 It was also Dr. Finkenbine’s opinion defendant did not meet the criteria for 

involuntary admission. He found her risk to harm herself or others was “greater than that 

associated with persons in the general population but about the same as those associated with 

[NGRI] acquittees who are released with conditions.” When asked whether she continued to 

need mental health treatment on an inpatient basis, Dr. Finkenbine was of the opinion defendant 

no longer needed to be hospitalized but that she would continue to benefit from treatment on an 

outpatient basis. His report, however, acknowledged the benefits of continued inpatient care in 

that she was “more likely to adhere to the treatment recommendations, take medications, attend 

group [therapy] and activities, and abstain from alcohol and intoxicating substances.” He noted 

how an inpatient setting helped restrict her from experiencing active symptoms of mental illness 

and thereby reduced the risk of harm to herself and others. However, he believed there were 

certain conditions that could be placed on her release to assure satisfactory progress in treatment, 

as well as the safety of herself and others, and that her continued inpatient care was not the “least 

restrictive” setting to manage her clinical needs. He listed a series of suggestions relating to 
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medication monitoring, psychiatric treatment and counseling, and methods of therapy. He also 

suggested the records of the various providers be available to each other as well as to the court. 

Dr. Finkenbine emphasized the need for both abstinence from street drugs and random drug 

screens and suggested defendant be released to a group home (as opposed to living on her own 

when first released), avoid contacting certain people, and have no access to firearms. Lastly, he 

said defendant needed to pursue financial support and any assistance available to her through 

Social Security or employment. 

¶ 36 Dr. Finkenbine acknowledged his awareness of the treatment team’s current 

position of not recommending conditional release. In spite of the testimony of Dr. Eberhardt 

indicating both she and the team believed defendant needed more time, Dr. Finkenbine 

contended it was due to some unspecified policy of McFarland requiring an independent 

assessment before making a recommendation, not a matter of their therapeutic or psychiatric 

opinions. He did acknowledge, upon further questioning by the State, he was surprised to learn 

one of the team members had earlier testified defendant needed more time to practice her learned 

skills and develop further insight. 

¶ 37 The trial court denied the petition for conditional release, stating it had not been 

shown by clear and convincing evidence defendant was not in danger of seriously injuring 

herself or others if conditionally released. The court based its decision on a number of factors:

(1) defendant’s substantial history of noncompliance with medication and substance abuse,

(2) the seriousness of her behavior when not compliant with medication and abusing substances,

(3) the fact that professional opinions regarding her behavior and performance were based upon 

her current condition while in a totally controlled environment, and (4) the presence of rule

violations within McFarland even while working toward conditional release. The court also 
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considered the fact defendant’s treatment team believed she would continue to benefit from 

further inpatient treatment and that she did not appear to have a feasible plan for community 

reintegration. The trial court concluded defendant failed to meet her burden. This appeal 

followed. 

¶ 38 II. ANALYSIS

¶ 39 Defendant contends the trial court’s ruling was against the manifest weight of the 

evidence because all the experts agreed she was an appropriate candidate for conditional release. 

To answer this question, we must engage in an analysis of the conditional release standard and 

the weight of expert testimony.

¶ 40 A. Conditional Release Standard

¶ 41 Prior to 2000, section 5-2-4(g) of the Unified Code placed the burden of proof on 

the State to prove the defendant should not be conditionally released if the facility director 

recommends conditional release. 730 ILCS 5/5-2-4(g) (West 1998). However, after 2000, the 

burden shifted to the defendant regardless of who petitioned the court for the defendant’s 

conditional release. 730 ILCS 5/5-2-4(g) (West 2004). In People v. Jurisec, 199 Ill. 2d 108, 766 

N.E.2d 648 (2002), our supreme court described the operation of section 5-2-4 before the 

amendment that shifted the burden. The court explained how an insanity acquittee may be 

committed to the custody of the DHS “only if it is shown, by clear and convincing evidence, that 

the acquittee is subject to involuntary admission or in need of mental health services on an 

inpatient basis.” (Internal quotation marks omitted.) Jurisec, 199 Ill. 2d at 116. Once committed, 

however, the acquittee “may be detained only as long as he [or she] continues to be subject to 

involuntary admission or in need of [inpatient] mental health services.” (Internal quotation marks 

omitted.) Jurisec, 199 Ill. 2d at 116. The defendant’s burden is to show by clear and convincing 
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evidence that, due to his or her mental illness (regardless of whether it was enough to require 

involuntary admission), defendant is not reasonably expected to inflict serious harm upon 

defendant’s self or another and would not benefit from further inpatient care or be in need of 

such inpatient care. Under a plain reading of the statute, if defendant proves either element, 

namely defendant is (1) not reasonably expected to inflict serious physical harm upon 

defendant’s self or another or (2) defendant would not benefit from inpatient care or is not in 

need of inpatient care, by clear and convincing evidence, the judge must grant the petition for 

conditional release. See 730 ILCS 5/5-2-4(a-1)(B) (West 2016). This would only make sense 

because, under section 5-2-4 of the Unified Code, the fact that a mentally ill person has 

committed a serious criminal offense is, alone, considered a sufficient reason to conclude that 

person is a danger to oneself or others, thereby justifying involuntary admission. See Jones v. 

United States, 463 U.S. 354, 366 (1983) (a finding of NGRI is a sufficient foundation for 

commitment of an insanity acquittee for the purposes of treatment and the protection of society). 

The Supreme Court went on to find that, having been found NGRI, a criminal defendant may 

continue to be confined in a mental institution “until such time as he [or she] has regained his [or 

her] sanity or is no longer a danger to himself [or herself] or society.” Jones, 463 U.S. at 370. As 

a matter of due process, “it was unconstitutional for a State to continue to confine a harmless, 

mentally ill person.” Foucha v. Louisiana, 504 U.S. 71, 77 (1992). “Once a defendant is 

involuntarily admitted, he [or she] may be held only as long as he [or she] is both mentally ill 

and dangerous.” People v. Hager, 253 Ill. App. 3d 37, 41, 625 N.E.2d 232, 236 (1993). 

“Different considerations underlie commitment of an insanity acquittee. As he was not 

convicted, he may not be punished. His confinement rests on his continuing illness and 

dangerousness.” Jones, 463 U.S. at 369. Our supreme court, in Jurisec, 199 Ill. 2d at 129, held 
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“[t]he primary objective of section 5-2-4 is to insure that insanity acquittees are not 

indeterminately institutionalized [citation], and that the intrusion on liberty interests is kept at a 

minimum.” (Internal quotation marks omitted.) It is for this reason conditional discharge was 

provided as a means to allow for reintegration of NGRI defendants into society. Representative 

Katz noted in the legislative debates prior to 1980, section 5-2-4 allowed for NGRIs to be 

released without court supervision if they were not in need of mental health treatment currently. 

81st Ill. Gen. Assem., House Proceedings, May 17, 1979, at 102 (statements of Representative 

Katz). However, after the legislation’s change in 1980, conditional release was made available as 

an option to the courts. Representative Katz saw this as a way to monitor the person as the 

facility director (known as the superintendent at the time) of the mental health center follows the 

individual, and he or she is required to report under the conditions imposed by what was at the 

time the Illinois Department of Mental Health and Developmental Disabilities (Department of 

Mental Health), and now is the Department of Human Services. The legislature stated this as a 

favorable option because “[t]hey are able to determine that the same kind of symptoms are 

reocurring [sic] that characterize the original time that the first [a]ct was committed and they 

then can reinstitutionalize the individual until the individual is able to work out the problem and 

is safe to be released.” 81st Ill. Gen. Assem., House Proceedings, May 17, 1979, at 102 

(statements of Representative Katz). In Representative Katz’s discussion about conditional 

release, he added as follows:

“I would point out to you that in the State of Illinois, in the cases 

involving people found not guilty by reason of insanity that in half 

of those cases murder has been what has been committed. For that 

reason everyone one [sic] of these case[s] in which we are able to 
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prevent such an individual from going out and committing another 

crime, will be indeed, a great contribution to the people of 

Illinois.” 81st Ill. Gen. Assem., House Proceedings, May 17, 1979, 

at 102 (statements of Representative Katz). 

Under section 5-2-4(g) when considering conditional discharge, regardless of who may be 

petitioning, the court is permitted to consider the following factors: 

“(1) whether the defendant appreciates the harm caused by 

the defendant to others and the community by his or her prior 

conduct that resulted in the finding of not guilty by reason of 

insanity; 

(2) Whether the person appreciates the criminality of 

conduct similar to the conduct for which he or she was originally 

charged in this matter;

(3) the current state of the defendant’s illness;

(4) what, if any, medications the defendant is taking to 

control his or her mental illness;

(5) what, if any, adverse physical side effects the 

medication has on the defendant; 

(6) the length of time it would take for the defendant’s 

mental health to deteriorate if the defendant stopped taking 

prescribed medication;

(7) the defendant’s history or potential for alcohol and drug 

abuse;
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 (8) the defendant’s past criminal history; 

(9) any specialized physical or medical needs of the 

defendant; 

(10) any family participation or involvement expected upon 

release and what is the willingness and ability of the family to 

participate or be involved; 

(11) the defendant’s potential to be a danger to himself, 

herself, or others; and 

(12) any other factor or factors the Court deems 

appropriate.” 730 ILCS 5/5-2-4(g) (West 2016).

¶ 42 It is reasonable to conclude conditional release was understood to come with 

some level of risk but that the facility and the court were in the best position to tailor conditions 

sufficient to minimize the risk to a level considered manageable and cognizant of society’s 

inherent concerns about the release of persons who have committed criminal acts, been found 

insane, and were now being considered for some form of release. The legislature realized there is 

a careful balance to be struck between the interests of safety to the public, treatment for the 

mentally ill individual, and the individual’s liberty interest.

¶ 43 In reviewing a petition for conditional release subsequent to hospitalization under 

section 5-2-4 of the Unified Code (730 ILCS 5/5-2-4 (West 2016)), the findings of the court 

must be “established by clear and convincing evidence.” 730 ILCS 5/5-2-4(g) (West 2016). Both 

the burdens of proof and proceeding remain with the defendant or anyone filing on his or her 

behalf. 730 ILCS 5/5-2-4(g) (West 2016). The court must determine whether defendant is “ ‘[i]n 

need of mental health services on an inpatient basis.’ ” 730 ILCS 5/5-2-4(a-1)(B) (West 2016). 
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“ ‘In need of mental health services on an inpatient basis’ means: a defendant who has been 

found not guilty by reason of insanity but who due to mental illness is reasonably expected to 

inflict serious physical harm upon himself [or herself] or another and who would benefit from 

inpatient care or is in need of inpatient care.” 730 ILCS 5/5-2-4(a-1)(B) (West 2016). 

¶ 44 B. Weight of Expert Testimony 

¶ 45 Defendant relies on three cases to support her argument: People v. Robin, 312 Ill. 

App. 3d 710, 728 N.E.2d 736 (2000), People v. Blumenshine, 72 Ill. App. 3d 949, 391 N.E.2d 

232 (1979), and People v. Smith, 126 Ill. App. 3d 5, 466 N.E.2d 1226 (1984). Defendant’s cited 

cases either predate the current iteration of the statute or involve substantially different facts and 

legal standards. One thing they share in common is reference to a statement regarding how “the 

finding [requiring an NGRI defendant to remain in involuntary inpatient treatment] must be 

based upon an explicit medical opinion regarding the [defendant’s] future conduct and can not be 

based upon a mere finding of mental illness.” (Internal quotation marks omitted.) Smith, 126 Ill. 

App. 3d at 9; see also Robin, 312 Ill. App. 3d at 716. This statement lies at the heart of 

defendant’s contention that it is manifest error to decline conditional release if the “experts” all 

testify in favor of release and, even when they do not, so long as their reasons, individually, 

would not constitute the basis for denial. In Robin, the court cited People v. Czyz, 92 Ill. App. 3d 

21, 26, 416 N.E.2d 1, 4 (1980), as support for defendant’s position; however Czyz is inapposite.

Robin, 312 Ill. App. 3d at 718. In Czyz, the appellate court reviewed a direct appeal from an 

NGRI finding the defendant was in need of mental treatment under the old statute and issued an 

order placing him in the custody of the Department of Mental Health for outpatient treatment. 

Czyz, 92 Ill. App. 3d at 22. The issue on appeal was whether the State had established by clear 

and convincing evidence the defendant was in need of mental treatment. Czyz, 92 Ill. App. 3d at 
- 19 - 

22. In that case, one doctor said the defendant was not in need of mental treatment in a hospital 

setting, one said he was not in need of mental treatment and was not a danger to himself or 

others, and one said he did not have a mental illness. Czyz, 92 Ill. App. 3d at 23-24. At the time, 

the statute defined “in need of mental treatment” as anyone with a mental disorder, not including 

people who were “mentally retarded” as defined by the Mental Health Code of 1967. Ill. Rev. 

Stat. 1977, ch. 911⁄2, § 1-11. If that person, as a result of his or her mental disorder, is “reasonably 

expected at the time the determination is being made or within a reasonable time thereafter to 

intentionally or unintentionally physically injure himself [or herself] or other persons, or is 

unable to care for himself [or herself] so as to guard himself [or herself] from physical injury or 

to provide for his [or her] own physical needs.” Ill. Rev. Stat. 1977, ch. 911⁄2, § 1-11. This 

definition is much closer to the language necessary for involuntary commitment (405 ILCS 5/1-

119 (West 2016)) than the current language of section 5-2-4 of the Unified Code (730 ILCS 5/5-

2-4 (West 2016)). Without a psychiatric diagnosis that the defendant was suffering from a mental 

disorder at the time of the hearing, the appellate court reversed, finding the trial court was in 

error for concluding he was “in need of mental treatment” as that phrase was defined at the time. 

Czyz, 92 Ill. App. 3d at 27. 

¶ 46 In addition, the reference to how the finding must be based on an “explicit 

medical opinion regarding the [defendant’s] future conduct and can not be based upon a mere 

finding of mental illness” (internal quotation marks omitted) (Czyz, 92 Ill. App. 3d at 25) comes 

from People v. Sansone, 18 Ill. App. 3d 315, 323, 309 N.E.2d 733, 739 (1974), which was not 

even an NGRI case—it was a civil commitment under the then-Mental Health Code of 1967 (Ill. 

Rev. Stat. 1971, ch. 911⁄2, ¶ 1-1 et seq.) and not a commitment hearing under the Unified Code. In

Sansone, the court noted, without evidence of prior harmful conduct, forced hospitalization was 
- 20 - 

not the equivalent of preventive detention based on a patient’s status as mentally ill. Sansone, 18 

Ill. App. 3d at 323. As such, the burden was different than in an NGRI case. The court in 

Sansone said, “[a]gain, we reiterate that a finding must be based upon an explicit medical 

opinion regarding the patient’s future conduct and cannot be based upon a mere finding of 

mental illness.” Sansone, 18 Ill. App. 3d at 323. The court distinguished criminal detention from 

detention under the Mental Health Code of 1967 and noted how an involuntary commitment 

required a medical opinion regarding the patient’s future conduct. Sansone, 18 Ill. App. 3d at 

323-24. The court in Sansone was making it clear the burden of proof in an involuntary 

commitment was not the criminal standard of proof beyond a reasonable doubt nor was it the 

civil standard of preponderance of the evidence. Sansone, 18 Ill. App. 3d at 325-26. They 

concluded, “[t]he facts upon which a medical opinion is based must be established by clear and 

convincing evidence, and the medical testimony upon which the decision to commit is based 

must be clear and convincing.” Sansone, 18 Ill. App. 3d at 326. 

¶ 47 This is relevant because the matter before us is a commitment pursuant to a 

finding of NGRI in a criminal proceeding, addressed under the Unified Code, a completely 

different proceeding than a petition for involuntary admission under the Mental Health and 

Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2016)). 

Further, it is not the initial commitment but a petition for conditional release subsequent to a 

finding there was a need for commitment, an entirely different proceeding altogether. Section 5-

2-4(k) of the Unified Code provides, “[i]n the event of a conflict between this Section and the 

Mental Health and Developmental Disabilities Code *** the provisions of this Section shall 

govern.” 730 ILCS 5/5-2-4(k) (West 2016). In a civil involuntary commitment, section 1-119 of 

the Mental Health Code outlines the circumstances that may subject a person to involuntary 
- 21 - 

admission, which include elements not found in section 5-2-4 of the Unified Code. Under 

sections 1-119 and 3-807 of the Mental Health Code, a person may be subject to involuntary 

admission if they are shown by expert testimony (1) to suffer from a mental illness and

(2) because of that illness, the person must be treated on an inpatient basis because the individual 

is (a) otherwise reasonably expected to engage in conduct placing the individual or others in 

physical harm or the reasonable expectation of harm or (b) unable to provide for his or her basic 

needs so as to guard against serious harm without assistance. 405 ILCS 5/1-119(1), 1-119(2), 3-

807 (West 2016). A person may also be subject to involuntary admission if the person (1) suffers 

from a mental illness, (2) refuses to adhere adequately to prescribed treatment, (3) is unable to 

understand the need for treatment, and (4) unless treated on an inpatient basis is reasonably 

expected to suffer mental or emotional deterioration to the point where the individual would 

qualify for admission under either of the reasons set forth in section 119(1) and (2) of the Mental 

Health Code. 405 ILCS 5/1-119(3) (West 2016). More importantly, section 3-807 of the Mental 

Health Code specifically states, 

“[n]o respondent [in an involuntary commitment proceeding] may 

be found subject to involuntary admission on an inpatient or 

outpatient basis unless at least one psychiatrist, clinical social 

worker, clinical psychologist, or qualified examiner who has 

examined the respondent testifies in person at the hearing. The 

respondent may waive the requirement of the testimony subject to 

the approval of the court.” 405 ILCS 5/3-807 (West 2016). 

In contrast, “ ‘[i]n need of mental health services on an inpatient basis’ ” under section 5-2-4(a1)(B) of the Unified Code means (1) a defendant who has been found not guilty by reason of 
- 22 - 

insanity but due to a mental illness (2) is reasonably expected to inflict serious physical harm 

upon himself or herself or another and (3) would either (a) benefit from inpatient care or (b) is in 

need of inpatient care. 730 ILCS 5/5-2-4(a-1)(B) (West 2016). 

¶ 48 The Czyz court’s use of the quote from Sansone is out of context and not 

particularly applicable to a petition for conditional release in a case under section 5-2-4 of the 

Unified Code. It gets repeated, however, in later cases relating to NGRI without any distinction. 

As mentioned above, it appears again in Robin, 312 Ill. App. 3d at 716, attributed to People v.

Grant, 295 Ill. App. 3d 750, 758, 692 N.E.2d 1295, 1300 (1998), an NGRI case prior to an 

amendment shifting the burden from the State to the defendant, where the trial court denied the 

recommendation of the director of the Department of Mental Health to conditionally release the 

defendant. At that time, the burden of proof was on the State when reviewing the determination 

of the facility director that the defendant was subject to transfer to a nonsecure setting, discharge, 

or conditional release. 730 ILCS 5/5-2-4(g) (West 1996). If the defendant was petitioning, the 

burdens of proceeding and proof were on the defendant. 730 ILCS 5/5-2-4(g) (West 1996). In 

Grant, the facility director sent two letters to the court recommending conditional release, the 

second coming almost two months after the court took no action on the first. Grant, 295 Ill. App. 

3d at 756. A hearing was not scheduled until almost 10 months later, and in the interim, the 

defendant also filed a petition for conditional release. Grant, 295 Ill. App. 3d at 756. As a result, 

the State contended on appeal it was confused as to whose burden it was at the hearing since the 

defendant had petitioned after the facility director’s recommendation was sent. Grant, 295 Ill. 

App. 3d at 757. The appellate court found a number of problems with the hearing ultimately 

conducted, including the fact there should have actually been two separate hearings. Grant, 295 

Ill. App. 3d at 757. The trial court was found to have initially placed the burden on the State to 
- 23 - 

prove by clear and convincing evidence defendant should not be discharged, and therefore they 

were found to be proceeding on the director’s request. Grant, 295 Ill. App. 3d at 757. To 

compound the problem, the appellate court in Grant also found the trial court, which was 

initially correct in its assessment of the applicable standard of clear and convincing evidence, 

ultimately decided the case based on a preponderance of the evidence standard. Grant, 295 Ill. 

App. 3d at 760-61. At the time, the State was obligated to prove by clear and convincing 

evidence the defendant (1) was subject to involuntary admission or (2) in need of mental health 

services on an inpatient basis. The previously mentioned Sansone quote originating from Czyz is 

found in Grant in relation to a request by the facility director to conditionally release an NGRI 

defendant. Grant, 295 Ill. App. 3d at 758. It is cited, however, within the context of what the 

State must prove to show a defendant is in need of involuntary admission, a term no longer found 

in section 5-2-4 of the Unified Code, but in the Mental Health Code. Confusing the issue further, 

this same quote in Grant is attributed to Smith, 126 Ill. App. 3d at 9, another case upon which 

defendant relies. In Smith, an NGRI defendant was ordered to undergo inpatient care and 

treatment at the Manteno Mental Health Center (Manteno), but the trial court failed to provide 

him a Theim date (People v. Theim, 52 Ill. App. 3d 160, 367 N.E.2d 367 (1977)) or maximum 

period of commitment to the Department of Mental Health as required by section 5-2-4(b) of the 

Unified Code. Smith, 126 Ill. App. 3d at 6. In that case, the appeal was from the initial order of 

commitment. Smith, 126 Ill. App. 3d at 6. A consulting psychiatrist who had examined the 

defendant four times and observed his interaction with other patients on a number of occasions 

gave his opinion that the defendant should be treated on an outpatient basis and that the 

defendant needed drug abuse counseling, which was not available at Manteno, and he believed 

the defendant “ ‘[did] not need and would not benefit from further hospital treatment’ ” and was 
- 24 - 

“ ‘not currently suffering from mental illness.’ ” Smith, 126 Ill. App. 3d at 7. Another 

psychiatrist who interviewed the defendant on several occasions found the defendant did not 

meet the statutory requirements for involuntary commitment. Smith, 126 Ill. App. 3d at 7. He 

agreed the defendant should not be hospitalized and needed outpatient drug treatment instead. 

Smith, 126 Ill. App. 3d at 7. When questioned by the court, the doctor said the defendant did not 

meet the statutory requirements for involuntary admission and was not a danger to himself or 

others. Smith, 126 Ill. App. 3d at 7. A social worker testified she believed the defendant was a 

proper candidate for outpatient treatment since the time of his arrival. Smith, 126 Ill. App. 3d at 

8. A psychologist at Manteno, who had interviewed the defendant and led his treatment team, 

concurred with the recommendations of the psychiatrist. Smith, 126 Ill. App. 3d at 8. The 

defendant’s mother said he could live with her if released. Smith, 126 Ill. App. 3d at 8. There was 

no other testimony, and the most serious transgression by the defendant while hospitalized of 

which the witnesses were aware was gambling. Smith, 126 Ill. App. 3d at 8. 

¶ 49 With no other evidence, the trial court ordered the defendant remanded to the 

custody of the Department of Mental Health, finding he was not subject to involuntary 

commitment but was in need of mental health services on an inpatient basis. Smith, 126 Ill. App. 

3d at 8. Then, the pertinent statute defined “ ‘[i]n need of mental health services on an inpatient 

basis’ ” as “a defendant who has been found not guilty by reason of insanity who is not subject to 

involuntary admission but who is reasonably expected to inflict serious physical harm upon 

himself [or herself] or another and who would benefit from inpatient care or is in need of 

inpatient care.” Ill. Rev. Stat. 1983, ch. 38, ¶ 1005-2-4(a)(1)(B). The burdens of proceeding and 

proof were on the State. Ill. Rev. Stat. 1983, ch. 38, ¶ 1005-2-4(g). 
- 25 - 

¶ 50 When discussing the State’s burden of proof, the appellate court said, “ ‘the 

finding must be based upon an explicit medical opinion regarding the [defendant’s] future 

conduct, and can not be based upon a mere finding of mental illness.’ ” (Internal quotation marks

omitted.) Smith, 126 Ill. App. 3d at 9 (quoting Czyz, 92 Ill. App. 3d at 25). They then outlined a 

series of circumstances that would not be sufficient to sustain a finding requiring involuntary 

commitment. Smith, 126 Ill. App. 3d at 9-10. These circumstances have served as a road map for 

defendant in our case, morphing into bases she contends are insufficient to sustain a finding 

denying conditional release for an NGRI defendant. In fact, the statement in defendant’s opening 

brief that “speculation that a defendant might resume the use of alcohol or drugs in the 

community is an insufficient basis to deny conditional release” is supported by reference to 

Smith but not as a quote. The reason is simple: defendant has taken the language from Smith and 

replaced the words “not sufficient to sustain a finding requiring involuntary commitment”

(Smith, 126 Ill. App. 3d at 9) with “an insufficient basis to deny conditional release.” This is not 

merely inaccurate—it is disingenuous. Clearly the two are not synonymous and would not be 

since involuntary commitment is addressed differently in the Mental Health Code. 

¶ 51 Under the circumstances that existed at the time of Grant, the need for “an 

explicit medical opinion regarding the defendant’s future conduct” is understandable. Grant, 295 

Ill. App. 3d at 758. At that time, the director of the mental health facility where the defendant 

was housed determined whether the defendant was no longer in need of inpatient services and 

should either be transferred to a nonsecure setting, conditionally released, or discharged. 730 

ILCS 5/5-2-4(g) (West 1996). Merely finding the defendant to be suffering from a mental illness 

would not meet a burden to show he is “ ‘[s]ubject to involuntary admission,’ ” i.e., “mentally ill 

and who because of his [or her] mental illness is either reasonably expected to inflict serious 
- 26 - 

physical harm upon himself [or herself] or another in the near future” or “is unable to provide for 

his [or her] basic physical needs.” 730 ILCS 5/5-2-4(a)(1)(A)(i), (ii) (West 1996). This is a 

different burden than currently exists, as “subject to involuntary admission” was expressly 

removed from the statute by Public Act 93-473, enacted August 8, 2003. See Pub. Act 93-473, 

§ 5 (eff. Aug. 8, 2003) (amending 730 ILCS 5/5-2-4). Alternatively, the State would have had to 

show the defendant was “ ‘[i]n need of mental health services on an inpatient basis,’ ” i.e., “a 

defendant *** not subject to involuntary admission but who is reasonably expected to inflict 

serious physical harm upon himself [or herself] or another and who would benefit from inpatient 

care or is in need of inpatient care.” 730 ILCS 5/5-2-4(a)(1)(B) (West 1996). The amendment of 

Public Act 93-473 removed “subject to involuntary admission,” leaving “in need of mental 

health services on an inpatient basis.” Pub. Act 93-473, § 5 (eff. Aug. 8, 2003). 

¶ 52 The removal of the language “subject to involuntary admission” is significant 

since, as noted above, involuntary admission requires, by statute, expert testimony in order to 

meet the threshold necessary for the court to consider involuntary commitment. Although not 

expressly required by statute, it is difficult to envision a situation where an NGRI defendant 

petitioning for conditional release could meet his or her burden without such testimony. The 

court, however, is not required to accept the expert’s testimony blindly. Unfortunately, the faulty 

logic even made it to our supreme court, as many appellate courts have not distinguished the 

civil commitment and criminal commitment requirements for experts. See Jurisec, 199 Ill. 2d at 

123. “ ‘[I]t is the trier of fact, and not the psychiatrists, who is to consider and weigh all the 

evidence in this case.’ ” People v. Cross, 301 Ill. App. 3d 901, 911, 704 N.E.2d 766, 772 (1998)

(quoting People v. Williams, 140 Ill. App. 3d 216, 226, 488 N.E.2d 649, 655 (1986)); see also 

People v. Wolst, 347 Ill. App. 3d 782, 808 N.E.2d 534 (2004). When deciding whether defendant 
- 27 - 

has met her burden, the trial court is not limited to the testimony of the three experts. See People 

v. Hoffmann, 140 Ill. App. 3d 1056, 1065, 489 N.E.2d 460, 466 (1986) (“In making its decision 

on the petition, the trial court may consider and give weight to evidence other than the testimony 

of the experts.”). In fact, when deciding a petition for conditional release, the conduct of the 

defendant that was the subject of the criminal prosecution is highly relevant to the issue of the 

reasonable expectation of defendant’s dangerousness. Hoffmann, 140 Ill. App. 3d at 1065 (citing 

People v. Gann, 94 Ill. App. 3d 1100, 1107, 419 N.E.2d 613, 618 (1981)). 

¶ 53 In Cross, the defendant was found NGRI after killing two women and attempting 

to kill a third along with her husband after invading their home to kill “witches and warlords 

[warlocks]” while acting under supposed orders from God. Cross, 301 Ill. App. 3d at 903. He 

appealed the trial court’s denial of the mental health center director’s recommendation he receive 

certain supervised off-grounds passes after 15 years of inpatient treatment at Elgin Mental Health 

Center. Cross, 301 Ill. App. 3d at 908. Both the director and the defendant’s treatment team were 

recommending these passes. Cross, 301 Ill. App. 3d at 903-04. At the hearing on the 

recommendation, the defendant presented two witnesses. Cross, 301 Ill. App. 3d at 904-07. 

Albert Stipes, M.D., a forensic psychiatrist, opined the “defendant was not a risk to harm himself 

or others, able to ‘provide for his basic physical need as to guard himself from serious harm,’ not 

subject to involuntary admission, and ready for the type of passes requested.” Cross, 301 Ill. 

App. 3d at 904. He was also of the opinion “the passes would not interfere with defendant’s 

medication or treatment, would enhance his treatment, would not lead to a resumption of drug 

use, would not lead to an escape, and would provide reasonable assurances of public safety.” 

Cross, 301 Ill. App. 3d at 904. The doctor was of the opinion the passes were necessary to assure 

defendant’s progress in treatment. Cross, 301 Ill. App. 3d at 904. In fairness, on cross-
- 28 - 

examination, Dr. Stipes acknowledged a number of negative incidents far more serious than any 

mentioned about defendant in our case, and the defendant in Cross had, shortly before the date of 

the hearing, expressed his opinion he was no longer in need of treatment. Cross, 301 Ill. App. 3d

at 904-05. These facts, although different from our case, are not relevant to the salient points of 

the case, however, as will be seen below.

¶ 54 The second and only other witness in that case was the defendant’s individual 

counselor who had been working with him for the previous two years, Raymond Sipowicz, a 

psychologist. Cross, 301 Ill. App. 3d at 905. After working with the defendant weekly, the 

counselor found him to be much more expressive and concerned about what was going on with 

himself and his behavior. Cross, 301 Ill. App. 3d at 905. The counselor’s recommendation in 

favor of supervised off-grounds passes came as a result of both his direct involvement with the 

defendant as well as his review of all the defendant’s records. Cross, 301 Ill. App. 3d at 905. He 

also was of the opinion the passes “would not interfere with defendant’s continued medication, 

cause him to resume using illegal drugs, cause him to harm himself or others, or pose a threat to 

public safety,” and they would further his treatment. Cross, 301 Ill. App. 3d at 905. Sipowicz 

said the defendant had already been granted on-grounds passes, and during that time, he followed 

the rules and never attempted to escape or injure himself or others and the passes were beneficial 

to his integration treatment. Cross, 301 Ill. App. 3d at 905-06. Sipowicz also said the director’s 

recommendation came as a result of an evaluation of the defendant by the Isaac Ray Center and 

their work with the defendant’s treatment team. Cross, 301 Ill. App. 3d at 906. 

¶ 55 Again, on cross-examination, the State was able to bring out a number of negative 

incidents, failures to take medication or cooperate with treatment at times, threats to staff, and 

lack of involvement or minimal participation in treatment. Cross, 301 Ill. App. 3d at 906. 
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¶ 56 The trial court denied the passes based only on the testimony of the defendant’s 

witnesses, who, as a basis for their opinions, expressed in much stronger terms than the witnesses 

here their professional opinions regarding the positive therapeutic benefits to granting the passes. 

In addition, the witnesses in Cross testified far more emphatically about the lack of possible 

relapse or return to dangerous behavior by the defendant if granted the passes, including 

expressing their opinions that denial of the passes would detrimentally affect the defendant’s 

progress in treatment, an opinion noticeably absent here. In the case before us, Dr. Eberhardt 

acknowledged defendant’s status was based upon her current circumstances; i.e., where she was 

in treatment “at this time,” in a closed, controlled environment, with regimented medication 

distribution and no access to outside influences or street drugs. 

¶ 57 As in our case, the defendant in Cross sought to argue the trial court’s decision 

was against the manifest weight of the evidence “because all the witnesses recommended 

granting the passes and because ‘[n]o evidence was presented to indicate that the passes would 

put *** [defendant] or the public in danger.’ ” Cross, 301 Ill. App. 3d at 910-11. Further, the 

defendant in Cross contended there was no evidence to indicate the passes would have a negative 

impact on his treatment and, instead, there was affirmative evidence a denial would interfere 

with his continued progress. Cross, 301 Ill. App. 3d at 911. The State argued the trial court was 

required to consider all the evidence and make a determination independent of the 

recommendations. Cross, 301 Ill. App. 3d at 911. 

¶ 58 The First District noted how the statute gave the trial court the discretion to grant 

the requested passes and did not mandate the trial court grant pass privileges solely on the basis 

of the treatment team’s and director’s recommendations. Cross, 301 Ill. App. 3d at 910. 

Correlatively, here, under section 5-2-4(e) of the Unified Code, once a defendant petitions for 
- 30 - 

conditional release, the court is required to hold a hearing. 730 ILCS 5/5-2-4(e) (West 2016). 

However, subsection (g) provides for the court’s findings to be established by clear and 

convincing evidence, considering a nonexhaustive list of factors, which includes “any other 

factor or factors the Court deems appropriate.” 730 ILCS 5/5-2-4(g)(1)-(12) (West 2016). The 

only mandatory requirements placed on the court are found in subsection (h) and are contingent 

on the court making certain findings “consistent with the provisions of this Section.” 730 ILCS 

5/5-2-4(h) (West 2016). There is nothing in the statute requiring the court to accept the experts’ 

testimony. When they discussed this issue, the court in Cross held, “[e]ven though the experts 

provided their opinions concerning defendant’s rationale concerning these problems [(the 

negative behaviors brought out on cross-examination)], it was for the trial court to weigh these 

opinions with the other evidence and draw its own conclusions.” Cross, 301 Ill. App. 3d at 911. 

The experts in Cross were unanimous in their opinion the defendant should be granted passes. In 

spite of that, the court was free to decide otherwise. The same is true here. Regardless of how 

consistent the experts may have been with regard to either element of “risk of harm” or “need or 

benefit of further inpatient treatment,” the court in this case was free to decide otherwise if it 

reasonably believed there was credible evidence sufficient to preclude a finding for defendant by 

clear and convincing evidence. 

¶ 59 In Williams, an NGRI defendant was found subject to involuntary admission and 

appealed on the same basis as defendant here; there was no “explicit medical opinion” that he 

was reasonably expected to harm himself or others. Williams, 140 Ill. App. 3d at 225-26. The 

First District found, although the opinions of the doctors were in conflict, it was a matter for the 

trial court to determine in weighing all the evidence, citing the language referenced above. 

Williams, 140 Ill. App. 3d at 226. It is clear, therefore, the trial court was not bound by the 
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testimony of the experts nor does the statute require an expert opinion in order to deny a petition 

for conditional discharge, contrary to the assertions of defendant. 

¶ 60 In Wolst, 347 Ill. App. 3d at 784, the defendant shot and killed a stranger in a 

health club while under the delusion the victim was a federal agent. As the defendant was 

suffering from paranoid schizophrenia, he was initially found unfit to stand trial. Wolst, 347 Ill. 

App. 3d at 784. After being returned to fitness, he was found NGRI and committed to the Elgin 

Mental Health Center. Wolst, 347 Ill. App. 3d at 784. Slightly over four years later, the facility 

director recommended transfer to a nonsecure setting, as well as the granting of supervised offgrounds and unsupervised on-grounds passes. Wolst, 347 Ill. App. 3d at 784-85. The defendant 

petitioned for the same. Wolst, 347 Ill. App. 3d at 785. The trial court denied the transfer and 

request for supervised off-ground passes but granted the unsupervised on-grounds pass 

privileges, and defendant appealed. Wolst, 347 Ill. App. 3d at 785. Among other issues not 

relevant to the matter before us, the appellate court was asked to determine whether the court’s 

ruling was against the manifest weight of the evidence since each of defendant’s four witnesses 

recommended all three privileges. Wolst, 347 Ill. App. 3d at 785. A social worker, two staff 

psychiatrists with the Cook County court’s forensic medical services, and one staff psychiatrist 

for Elgin Mental Health Center testified the defendant was not a threat to himself or anyone else; 

was no longer suffering delusions; and, due to his medication, his paranoid schizophrenia was in 

remission. Wolst, 347 Ill. App. 3d at 785-89. He was considered one of the most “stable” and 

“appropriate” patients on the unit. Wolst, 347 Ill. App. 3d at 785-89. They did not believe the 

transfer or passes posed a risk or danger to the defendant or others and that they would be 

beneficial to the defendant’s treatment. Wolst, 347 Ill. App. 3d at 785-89. All of the doctors 
- 32 - 

indicated their opinions were contingent on defendant’s continued compliance with medication. 

Wolst, 347 Ill. App. 3d at 785-89. 

¶ 61 Much like the trial court here, the trial judge in Wolst acknowledged the 

defendant’s substantial progress with medication and noted it was an integral part of his 

treatment. Wolst, 347 Ill. App. 3d at 789-90. However, the court felt the need to observe how the 

defendant did with the unsupervised on-grounds passes before advancing to off-grounds and a 

transfer, just as the clinical team did for defendant here. Wolst, 347 Ill. App. 3d at 790. The trial 

court in Wolst was also concerned about the lack of information regarding how the transfer and 

off-grounds passes would be monitored or supervised and recognized both the need for 

continued medication and the risk of “ ‘grave consequences’ ” if there was a relapse, much like 

the trial court here. Wolst, 347 Ill. App. 3d at 790. 

¶ 62 The First District said the trial court’s determination regarding whether a 

defendant has carried his burden under section 5-2-4(g) by clear and convincing evidence “must 

be respected unless such determination is against the manifest weight of the evidence.” Wolst, 

347 Ill. App. 3d at 790 (citing Cross, 301 Ill. App. 3d at 908-09). For a decision to be “against 

the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by 

the trier of fact is clearly evident.” Wolst, 347 Ill. App. 3d at 790. The court found the record 

provided ample support for the court’s decision in that “[t]he record makes clear that the trial 

court’s primary concern was that [the] defendant, when placed in a less secure environment and 

charged with taking his own medication, might fail to do so and relapse.” Wolst, 347 Ill. App. 3d

at 791. The court also noted, although all the witnesses supported defendant’s requests, they also 

acknowledged the possibility of relapse with the concomitant potential for dangerous behavior if 

the defendant stopped taking his medication. The appellate court also found section 5-2-4(g) 
- 33 - 

gave the trial court broad discretion in determining whether a defendant remains mentally ill and 

dangerous, citing the court’s language in Cross, which found the responsibility for considering 

and weighing the evidence lies with the fact finder and not the psychiatrist. Wolst, 347 Ill. App. 

3d at 790. 

¶ 63 The defendant in People v. Bethke, 2016 IL App (1st) 150555, 55 N.E.3d 244,

citing Blumenshine, 72 Ill. App. 3d 949, contended the trial court should not disregard the 

testimony of two expert witnesses who agreed he was suitable for off-grounds pass privileges. 

We find Blumenshine as unpersuasive as did the First District in Bethke. Unlike the case before 

us, in Blumenshine, all the defendant’s witnesses and the State concurred in the recommendation 

for conditional discharge. Blumenshine, 72 Ill. App. 3d 949. Here, as in Bethke, the State 

opposed the petition and cross-examined defendant’s witnesses extensively on all aspects of 

defendant’s treatment history, progress, and prognosis. Also similar to Bethke, the experts here 

had to acknowledge defendant engaged in a series of rule violations created primarily by her 

relationship with a male patient and her frustration with how that relationship was being treated 

by hospital staff. Although considered small or minor violations, it was significant to the court 

that they occurred during the period of time defendant was working toward a conditional 

discharge petition. In Bethke, the First District noted similar timing and found it significant not 

only to the trial court but to the appellate court as well.

¶ 64 C. Trial Court’s Analysis 

¶ 65 In light of the above, we review defendant’s argument the trial court’s judgment 

was manifestly erroneous and disagree. 

¶ 66 Under section 5-2-4(g) of the Unified Code, a defendant is required to prove by 

clear and convincing evidence conditional release is appropriate. 730 ILCS 5/5-2-4(g) (West 
- 34 - 

2016). “The trial court’s determination as to whether a defendant has carried his burden under 

section 5-2-4(g) by clear and convincing evidence must be respected unless such determination 

is against the manifest weight of the evidence.” Wolst, 347 Ill. App. 3d at 790. “A finding is 

against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if 

the finding itself is unreasonable, arbitrary, or not based on the evidence presented.” Best v. Best, 

223 Ill. 2d 342, 350, 860 N.E.2d 240, 245 (2006). 

¶ 67 Defendant contends various individual factors addressed by both the experts and 

the court cannot, by themselves, be the basis for denying conditional discharge. She does so 

without either acknowledging or recognizing the factors she identifies, when considered together

in conjunction with others, may indeed permit the court to conclude defendant should not be 

conditionally discharged at this time. Defendant’s primary contention is made clear in her reply 

brief when she claims “if all the experts agree that a patient is stable, not dangerous, and likely to 

continue treatment in the community—as defendant’s three experts did—the mere possibility 

that the patient could stop taking medication or abuse drugs and then engage in dangerous 

behavior cannot meet the inpatient standard.” Such an argument erroneously presumes the trial 

court’s only basis for declining to accept the recommendations of defendant’s witnesses was “the 

mere possibility” defendant might stop taking her medication and return to street drugs. 

Defendant ignores completely the fact her treating psychiatrist and her treatment team were not 

supportive of conditional release and believed she needed more time with inpatient treatment.

This is so, in spite of defendant’s professed understanding of her circumstances and apparent 

commitment to meaningful participation in treatment. Defendant also discounts the possibility 

the trial court recognized that even though her treatment providers spoke about her progress in 

very positive terms, they were also of the opinion further mental health treatment within the 
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hospital setting would be beneficial in assessing the level of her commitment to continued mental 

health treatment and abstinence from street drugs.

¶ 68 Recognizing the speed with which defendant’s psychosis and resultant dangerous 

or self-destructive behavior could recur upon relapse, the trial court may well have placed greater 

weight on the reasoned and unanimous agreement of her treatment team that she should not be 

conditionally released yet. When the court considered the average of three hospitalizations per 

year over the past 10 years, the court could have concluded the concerns of Dr. Eberhardt and the 

treatment team were well-founded, especially in light of the fact Dr. Eberhardt was careful to 

qualify her opinions concerning defendant’s mental condition and progress by indicating the 

status “at this time.” While in a controlled environment, with the regulated administration of 

medication without access to street drugs or alcohol, defendant was progressing well and did not 

appear to be likely to be a danger to herself or others at that moment. Even Dr. Finkenbine’s 

report was careful to qualify his opinion by noting, “[h]er clinical status is absent any signs or 

symptoms of mental illness and therefore the inpatient setting is not ‘needed’ in the same sense 

as would be recommended or necessary for the management of acute mania, active delusions, 

thoughts of suicide or severe depression or anxiety. Continuous inpatient psychiatric 

hospitalization is usually and eventually counterbalanced by the benefits of a less restrictive 

setting, personal liberty, and individual freedom.” In effect, he was saying she was not currently 

exhibiting the acute symptoms and behavior, which might be the basis for an order of 

involuntary admission and therefore the consideration of conditional release. However, that is 

not her circumstance, as this is not a case of involuntary admission. As shown above, this 

conclusion is based upon a misunderstanding of the criteria for conditional release of an NGRI 

defendant. 
- 36 - 

¶ 69 It is not unreasonable to believe the trial court recognized the repetitive nature of 

defendant’s hospitalizations as caused by her repeated release upon stabilization, only to return 

to self-destructive and, at times, seriously dangerous behavior created by her psychosis. Each of 

the witnesses noted this forced hospitalization had been her longest and posited it may have 

allowed her to begin facing the seriousness of her mental and substance-abuse issues. The refusal 

of her psychiatrist and treatment team to recommend immediate conditional release was only an 

effort to ascertain whether, with more freedom within the hospital setting, defendant would 

continue to exhibit rehabilitative behavior reflecting an understanding and internalization of what 

she was learning. They undoubtedly would agree with Dr. Finkenbine’s statement about the 

counterbalancing of psychiatric hospitalization with “less restrictive settings, personal liberty, 

and individual freedom”; they just did not believe she was ready yet. 

¶ 70 Defendant lists “four grounds” that she says were the only bases cited by the trial 

court as justification for denial of the petition, without citation to the record. In fact, the court 

referenced the four reasons why defendant continues to benefit from mental health services on an 

inpatient basis listed by the treatment team in their August 2017 report. However, they are not 

the same reasons listed by defendant. In addition, those reasons mentioned by the team were in 

no way the only factors considered by the court in its ruling. Defendant listed the first factor 

relied upon by the court as “[defendant’s] lack of exposure to a non-controlled environment since 

being confined at McFarland.” Instead, the first factor listed by the team and referenced by the 

court was defendant’s history of manic and psychotic behavior related to active symptoms of her 

bipolar I disorder. It is true the witnesses were asked about defendant’s performance and

behavior in a strictly controlled and monitored environment. It is equally true the trial court was 

concerned about how that may translate into the significantly less structured environment of a 
- 37 - 

halfway house for perhaps no more than 30 days before being reintegrated into the community. 

However, “the current state of the defendant’s illness,” “the length of time it would take for the 

defendant’s mental health to deteriorate if the defendant stopped taking prescribed medication,” 

and “the defendant’s potential to be a danger to himself, herself, or others” are all specifically 

referenced in section 5-2-4(g)(3), (6), and (11) of the Unified Code as factors the court may 

consider. 730 ILCS 5/5-2-4(g)(3), (6), (11) (West 2016). Rather than constituting an 

unreasonable basis for the ruling, it is expressly provided for by statute. In addition, the court 

was permitted to, and did, consider the long history of repeated hospitalizations and defendant’s 

history of extensive alcohol and drug abuse—again, a permitted consideration under section 5-2-

4(g)(7) and (12) of the Unified Code. 730 ILCS 5/5-2-4(g)(7), (12) (West 2016).

¶ 71 The second factor listed by defendant was “the potential that [defendant] may 

engage in unacceptable behavior once released into the community,” which, in reality, is the 

same as her first factor, just worded differently. The second factor of the treatment team was 

defendant’s “history of substance abuse,” which has already been discussed and is a listed factor 

for consideration by the trial court. 

¶ 72 The third factor argued by defendant as one of the four forming the basis for the 

court’s denial of her petition was “that [defendant] lacks a finalized conditional release plan.” 

Admittedly, this is the fourth factor listed by the team, “[defendant] does not have a feasible plan 

for community reintegration.” This was understandable in light of the evidence that until 

suggested otherwise, her intention had been simply to return to live in an apartment obtained for 

her by her father. The more realistic possibility of residing in a group home had not even 

occurred to defendant until suggested by either Dr. Finkenbine or someone else at or around the 

evaluation in August 2017, since that is the first time it is referenced in the record. This was also 
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noticed by the trial court and evident in its questions regarding her recent acceleration of her 

involvement in formulating plans. 

¶ 73 Dr. Finkenbine’s report even noted, although defendant was requesting 

conditional release, there was no evidence of any significant discharge planning, nor did 

defendant have any specific community support plan. This information came from an interview 

conducted on August 8, 2017, after her petition was filed and while she awaited a hearing. 

Defendant cited Smith, 126 Ill. App. 3d 5, for the proposition that “the lack of a finalized 

conditional release plan *** is an insufficient basis to deny conditional release,” once again 

juxtaposing “conditional release” with “involuntary commitment,” which was the holding in 

Smith. As we have stated, Smith was a direct appeal of an NGRI inpatient care and treatment 

order where the State’s witnesses unanimously recommended defendant’s release. Considering

the State had the burden of proof as the defendant was being involuntarily committed, it is 

understandable the court found “[e]xpert testimony that defendant may have difficulty adjusting 

to the stresses of noninstitutional life is not sufficient to sustain a finding requiring involuntary 

commitment.” Smith, 126 Ill. App. 3d at 9 (citing Czyz, 92 Ill. App. 3d at 26-27). There is very 

little about Smith that relates to the case before this court. Defendant seeks support in Smith

again regarding her claim the trial court speculated defendant might return to the use of alcohol 

or drugs upon her return to the community, contending such speculation is not sufficient, on its 

own, to form the basis for denying conditional release. However, once again, she substituted

“conditional release” for “involuntary commitment.” In fact, “the defendant’s history or potential 

for alcohol and drug abuse” is one of the nonexclusive factors listed in subsection (g) of the 

Unified Code and is therefore relevant to a court’s consideration when hearing a petition for 

conditional release. 730 ILCS 5/5-2-4(g)(7) (2016). 
- 39 - 

¶ 74 The final factor listed by defendant is actually the one upon which the trial court 

gave substantial deference—the fact that defendant’s own treatment team was of the opinion she 

would continue to benefit from inpatient mental health services and was not recommending 

conditional release. Here, defendant confuses the statute’s provision for alternative methods of 

petitioning for conditional release with elements of proof. Whether petitioned by the facility 

director or the individual, the trial court is still invested with the responsibility to consider the 

evidence. The recommendation of the facility director or the treatment team is merely one factor 

to consider. The trial court did not, and should not, consider it dispositive. See Hoffman, 140 Ill. 

App. 3d at 1065 (“In making its decision on the petition, the trial court may consider and give 

weight to evidence other than the testimony of the experts.”). 

¶ 75 As the trial court noted, defendant had only as recently as July 2017 “begun 

working on a relapse prevention plan in order to develop a realistic plan on how to maintain 

sobriety in the community.” This was only two months before her hearing and coincided with 

when she began a parenting course required for her DCFS case. These were all things the court 

could reasonably consider when assessing the strength of defendant’s commitment to treatment. 

This is especially true when considering defendant had been hospitalized 30 times in the last 10 

years because of a continued inability or unwillingness to stop using street drugs and alcohol 

coupled with either a failure or inability to fully appreciate the seriousness of her mental issues. 

There is enough in the record to find it was not against the manifest weight of the evidence to 

find defendant remains a reasonable danger to herself or others and that she continues to benefit 

from inpatient treatment. Those factors, which clearly weighed against her, included her long 

history of substance abuse, both drug and alcohol; her repeated failures or refusals to comply 

with her mental health treatment and medication when not hospitalized; her lack of any 
- 40 - 

reasonable plan for her release as well as little evidence of family support; and the fact that, if 

she returned to abusing drugs and alcohol as she had so many times in the past, her mental 

condition could deteriorate very rapidly, according to at least one doctor, in a matter of one or 

two days. This was coupled with the trial court’s reasonable concern defendant’s professed 

cooperation and intention to continue treatment on her own was fueled more by her desire to 

present a good picture of herself to DCFS because of the impending case involving her daughter

than due to any serious intention to do so. 

¶ 76 Based upon the evidence, the trial court gave proper consideration to the factors 

listed in section 5-2-4(g) of the Unified Code, weighed the testimony of the experts, and properly 

considered the reports and recommendations of the treatment team. This record does not permit 

us to find the trial court’s finding was against the manifest weight of the evidence. Could other 

fact finders consider the same evidence and reach a different conclusion? Possibly—however, 

that is not our standard of review. “[T]he reviewing court must give deference to the trial court’s 

decision and cannot set that decision aside because it, applying the [clear and convincing 

evidence] standard, would have ruled differently.” (Internal quotation marks omitted.) People v. 

Ferguson, 238 Ill. App. 3d 448, 455, 603 N.E.2d 1257, 1261 (1992). 

¶ 77 D. Application of Legal Standard 

¶ 78 Defendant argues the trial court used a stricter standard than legally required. We 

disagree.

¶ 79 By selectively extracting words of the court out of context, defendant contends 

this somehow meant the trial court applied a higher or stricter standard than is required under the

Unified Code. Defendant’s argument is unsupported by authority in either brief. She recites no 

case law in support of her contention the trial court has somehow applied a different or 
- 41 - 

inappropriate standard because it did not expressly use the words “reasonably expected” or 

“reasonable expectation” when assessing the potential for harm to herself or others. As such, she 

has forfeited this argument under Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017). See 

In re Addison R., 2013 IL App (2d) 121318, ¶ 31, 989 N.E.2d 224 (an argument raised on appeal 

but not supported by citation to relevant authority is forfeited under Illinois Supreme Court Rule 

341(h)(7) (eff. July 1, 2008)). However, since this rule is an admonishment to the parties and not 

a limitation on this court’s jurisdiction, we may address an issue in order to achieve a just result 

and the need for a sound and uniform body of precedent. People ex rel. Resnik v. Curtis & Davis, 

Architects & Planners, Inc., 58 Ill. App. 3d 28, 31, 373 N.E.2d 772, 774 (1978). We choose to 

do so here.

¶ 80 Just as in Bethke, defendant here contends the trial court applied the wrong legal 

standard. In Bethke, the defendant contended the trial court’s decision was based on an 

unwillingness to take any risk whatsoever, thereby making it impossible for anyone in the 

defendant’s position to secure conditional discharge since psychiatry does not deal in such 

absolutes when predicting future behavior. Bethke, 2016 IL App (1st) 150555, ¶ 30. Here, 

defendant contended the trial court applied a different and stricter standard for continued 

confinement due to comments the court made during its oral ruling from the bench. Contrary to 

defendant’s assertion, the court agreed with defense counsel’s representation of the applicable 

legal standard: 

“You’re right in indicating what the law is to the Court, [defense 

counsel], and that is that the court must find that there is a need for 

further in-patient treatment, and that whether or not it’s been 
- 42 - 

shown that the Defendant would be at risk to seriously harm 

herself or others.” 

The trial court also expressly found: 

“[T]hat’s not been shown by clear and convincing evidence at this 

hearing, that [defendant] is not in danger of seriously injuring 

herself or others if she were to be conditionally released from the 

McFarland Mental Health Center.”

¶ 81 The trial court, when entering its order, noted, in addition to the opinions 

expressed by the doctors, the court had the reports of Dr. Finkenbine, the August 23, 2017, 

NGRI 60-day-treatment-plan report, all the reports filed previously, and Dr. Lawrence L. 

Jeckel’s fitness report of December 9, 2015. It is true Dr. Eberhardt expressed the opinion 

defendant did not meet the criteria for involuntary commitment; however, as we now see, that is 

not the standard by which her eligibility for conditional release was to be determined. The doctor 

was asked whether defendant was “at this time” “reasonably expected to inflict serious physical 

harm upon herself.” She responded, “she’s not in imminent risk to hurt herself or others,” 

indicating this was due to defendant’s current compliance with medication and lack of access to 

alcohol and street drugs as a result of her inpatient status. When asked specifically if defendant 

was “an appropriate candidate for conditional release,” Dr. Eberhardt’s response was, “I think 

that she does not meet the criteria for in-patient hospitalization. If [defendant] were a civil 

patient, she would have been discharged already.” True as that may be, neither opinion is 

sufficient to require the court to order defendant’s conditional release. This is especially so since 

Dr. Eberhardt said neither she nor the other members of the treatment team were recommending 

conditional discharge and defendant would benefit from continued inpatient treatment. 
- 43 - 

Defendant is not being evaluated as a person under a civil commitment through the Mental 

Health Code but as a petitioner for conditional release pursuant to the Unified Code. 

¶ 82 The treatment team recognized the substantial risk caused by early release in an 

essentially unstructured environment, especially in light of the fact that as late as August 2017, 

one month before the hearing on her petition, defendant “continued to struggle with 

inappropriate boundaries with a male peer from another unit with whom she stated she was in a 

relationship with,” according to the August 23, 2017, report. She distracted other peers on 

numerous occasions, and when required to sit across the room from the male peer, her difficulty 

with compliance resulted in, on one occasion, her leaving the group rather than complying. 

Defendant had gone so far as to “challenge another unit’s treatment team’s recommendations 

regarding the same male patient and when confronted, made inappropriate comments” to staff. 

As the trial court noted, although seemingly trivial, in the larger scheme of things, it found 

defendant’s behavior troubling as it occurred shortly before the discharge hearing she knew was 

coming and after she had supposedly been doing so well with all treatment modalities. 

¶ 83 It was not improper for the trial court to consider the fact defendant engaged in 

such behavior within the structured environment while on scheduled and monitored medication 

and without access to alcohol or street drugs. Defendant had been receiving intensive mental 

health and substance-abuse treatment for an extended period of time, longer than she had ever 

remained hospitalized before. However, within a month of an upcoming conditional discharge 

hearing, she was engaging in behavior that violated rules within the facility. As Dr. Eberhardt 

noted in her testimony, “if they don’t follow the small rules at McFarland, they won’t follow the 

big rules outside.” The fact that defendant had failed to show she could follow rules in a 
- 44 - 

controlled setting undoubtedly contributed to the opinion of Dr. Eberhardt and the treatment 

team that defendant “continues to benefit from mental health services on an inpatient basis.” 

¶ 84 By parsing the words of the court, defendant argued application of an 

inappropriate or incorrect standard of proof. Instead, the court made clear its concerns about 

defendant’s behavior should she be released prematurely. The court expressly found defendant 

had failed to show by clear and convincing evidence she would not be in danger of seriously 

injuring herself or others if she were conditionally released at this time. This is the proper 

standard applicable to the defendant’s burden of proof in these proceedings. Section 5-2-4(g) of 

the Unified Code provides the only standard of review applicable to this section, requiring “[t]he 

findings of the Court shall be established by clear and convincing evidence.” 730 ILCS 5/5-2-

4(g) (West 2016). Clear and convincing evidence has been defined as “the quantum of proof 

which leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition 

in question.” In re Estate of Ragen, 79 Ill. App. 3d 8, 14, 398 N.E.2d 198, 203 (1979). 

¶ 85 The trial court agreed the burden was on defendant to show by clear and 

convincing evidence she was not “at risk” to seriously harm herself or others and was not in need 

of further inpatient treatment. This is consistent with the case law. See People v. Gunderson, 

2017 IL App (1st) 153533, ¶ 19, 82 N.E.3d 677 (section 5-2-4(g) of the Unified Code requires a 

defendant who seeks discharge to prove by clear and convincing evidence that he or she has no 

mental illness or that he or she is not dangerous). Subsection (g) makes no distinction between 

the burden for discharge and that for conditional release. In our case, after explaining the 

rationale underlying its ultimate finding, the court concluded, “that’s not been shown by clear 

and convincing evidence at this hearing, that [defendant] is not in danger of seriously injuring 

herself or others if she was to be conditionally released from the McFarland Mental Health 
- 45 - 

Center.” The court had already noted how all of the experts acknowledged defendant would 

benefit from further mental health treatment but her treatment team was of the opinion she was 

not ready for conditional release just yet. 

¶ 86 Defendant is troubled by certain words the court used when making its ruling: 

“[t]he Court has to be absolutely sure in its mind that when a Defendant is 

released from the McFarland Center, or any center that has that much of a 

controlled environment, that there is in the court’s mind no risk that any future 

serious harm may be committed. 

 *** 

The Court, in my mind, has to be sure this type of thing [defendant 

relapsing on drugs and alcohol, thereby exacerbating her bipolar 1 disorder 

symptoms and engaging in behavior dangerous to herself or others] is not going to 

happen.” 

Defendant contends this means the court used a higher, inappropriate legal standard, an argument 

which, as we noted, defendant has forfeited. However, defendant’s argument misses the point. 

The reason the burden remains on the defendant is because there has already been a 

determination the defendant was dangerous. She committed a serious felony offense and had

been found NGRI. In other words, the trier of fact has determined she committed the criminal 

offense charged and she was suffering from a mental illness. “[T]he insanity verdict in and of 

itself supports the conclusion that the insanity acquittee continues to be mentally ill and 

dangerous.” (Internal quotation marks omitted.) Gunderson, 2017 IL App (1st) 153533, ¶ 21. 

¶ 87 In spite of this language, the trial court specifically set forth the standard under 

which it was to decide the case, and it stated on the record its finding was by “clear and 
- 46 - 

convincing evidence.” Our supreme court has said a reviewing court “presume[s] that the trial 

judge knows and follows the law unless the record indicates otherwise.” People v. Gaultney, 174 

Ill. 2d 410, 420, 675 N.E.2d 102, 107 (1996). We presume the same, and nothing in the record 

affirmatively rebuts that presumption. The language of concern to defendant must be looked at in 

context. The trial court engaged in a thoughtful analysis of the evidence, outlining many of its

concerns about defendant’s history, progress in treatment, recent troubling behavior, and 

repeated hospitalizations for the same reasons over a 10-year period. The court properly 

considered the testimony of the experts and, understandably, gave great weight to the fact 

defendant’s treatment team was not ready to recommend conditional discharge until they had an 

opportunity to observe defendant’s behavior in a less supervised setting, in light of her previous 

violations in the facility. The court noted, “the problem I have here is that this Defendant’s 

history has shown that when she goes off, she goes off fast and her actions as a result of that are 

dangerous,” as a significant and reasonable concern. We cannot say the court used the wrong 

legal standard.

¶ 88 III. CONCLUSION

¶ 89 For the reasons stated, we affirm the trial court’s judgment. As part of our 

judgment, we award the State its $50 statutory assessment (55 ILCS 5/4-2002(a) (West 2016)). 

¶ 90 Affirmed.