NOTICE

Decision filed 03/18/15. The text of this decision may be NO. 5-13-0416 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Johnson County. ) v. ) No. 99-CF-106 ) JAMES E. GRANT, ) Honorable ) James R. Williamson, Respondent-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Welch concurred in the judgment and opinion.

OPINION

¶1 The respondent, James E. Grant, was committed under the Sexually Dangerous

Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 2012)). Subsequently, he filed an

application for discharge or conditional release. An evaluation of the respondent was

prepared and filed with the court. A team of evaluators found that the respondent was not

a sexually dangerous person and recommended conditional release. The State filed a

motion to appoint an independent psychiatrist to examine the respondent. The court

granted the State's motion over the respondent's objection and denied the respondent's

request to appoint his own independent psychiatrist. A jury found that the respondent

1 remained subject to commitment as a sexually dangerous person. The respondent

appeals, arguing that the court erred and violated his constitutional rights by appointing

an expert for the State and denying his request for his own expert. We reverse and

remand for further proceedings consistent with this decision.

¶2 In 1999, the respondent was charged with attempted aggravated criminal sexual

assault, aggravated battery, and home invasion. These charges stemmed from an

attempted sexual assault of an adult neighbor. He was also charged with residential

burglary in three unrelated cases, each of which involved the theft of women's underwear.

He was initially found unfit to stand trial. Subsequently, he was found fit to stand trial.

However, the State opted to file a petition for commitment under the Act in lieu of

prosecution on one of the residential burglary charges. In April 2002, the respondent was

declared a sexually dangerous person and committed to the custody of the Department of

Corrections (DOC).

¶3 The respondent filed recovery applications alleging that he was no longer sexually

dangerous in 2005 and 2010. Those applications were denied. On July 12, 2012, the

respondent filed a third application alleging that he was no longer sexually dangerous and

requesting that he be discharged or conditionally released. Along with his application, he

filed a motion for the appointment of an independent psychiatrist, which the court denied.

¶4 On November 26, 2012, the DOC filed with the court a sociopsychiatric report

prepared by an evaluation team consisting of a licensed clinical social worker, a

psychologist, and a psychiatrist. The report discussed the respondent's history prior to his

commitment in 2002. The evaluators noted that he had no sex offense convictions prior 2 to the 1999 charges that led to his commitment; however, the respondent was the subject

of an indicated report with the Department of Children and Family Services in 1990.

That report indicated that he had sexually abused his three-year-old stepdaughter. In

addition, the evaluators noted that the respondent was diagnosed with pedophilia in 1992.

¶5 The report then discussed the respondent's progress through treatment programs.

The evaluators noted that he had made very little progress. They also stated that the

respondent had poor insight into his mental illnesses and continued to deny or downplay

his actions. They noted that the respondent suffered from developmental disabilities and

a speech impediment as well as depression. They diagnosed the respondent as suffering

from fetishism, mild mental retardation, and a personality disorder, not otherwise

specified, with narcissistic and paranoid traits. They concluded, however, that the

respondent posed a low risk of reoffending for two reasons. First, they found that he did

not suffer from a mental disorder that would predispose him toward sexual violence. In

addition, his score on the Static 99R test indicated a low risk for recidivism. The

evaluation team recommended that the respondent be conditionally released.

¶6 The State filed a motion for the appointment of an independent psychiatrist. In

this motion, the State alleged that it objected to portions of the evaluators' report and that

it wanted the court to appoint Dr. Angeline Stanislaus. The respondent filed an objection

to the State's motion, arguing that the State was not entitled to the appointment of an

independent evaluator unless it could demonstrate bias on the part of the evaluators who

prepared the report. Additionally, the respondent requested that the court appoint an

independent psychiatrist for him in the event it granted the State's motion. 3 ¶7 On April 17, 2013, the court held a hearing. Addressing the prosecutors, the court

asked, "I take it the State's experts are saying that Mr. Grant is, in their opinion, eligible

for conditional release, *** am I stating that correctly?" One of the prosecutors

responded, "I have an issue with the individuals that prepared the socio-psychological

report being referred to as 'the State's experts.' " She explained that this was because the

State's Attorney has no control over who is assigned by the DOC to prepare the reports,

and the DOC is "certainly not the equivalent or synonymous with the State's Attorney's

office." She argued that "it would unfairly tie our hands to go with whatever expert the

Department of Corrections" had chosen.

¶8 In response, counsel for the respondent pointed out that a respondent can only

have an independent expert appointed if he can show bias on the part of the DOC

evaluators. He argued, as he does in this appeal, that it would be unfair to allow the State

to have an independent examiner without having to meet this same standard. The

prosecutor pointed out that a respondent is allowed to have his own expert without

showing prejudice if he can pay the expert on his own. She argued that the State's

request for an independent psychiatric examination here was the equivalent of a

respondent retaining his own expert. She emphasized that defense counsel cannot

"dictate to the State's Attorney's office how they use their funds that is [sic] set aside for

expert witnesses."

¶9 The court granted the State's motion. The respondent then argued in favor of his

request for a court-appointed independent expert of his own. Counsel stated, "I don't

think it's fair that just because the State has a bigger budget that they get an independent 4 expert while Mr. Grant doesn't." The court denied the request, noting that the respondent

could not show any bias on the part of the experts who prepared the report.

¶ 10 The matter proceeded to a jury trial, and the jury found that the respondent was

still a sexually dangerous person in need of continued commitment. This appeal

followed.

¶ 11 On appeal, the respondent argues that the court erred and violated his

constitutional rights by appointing an independent expert for the State. He also

challenges the court's ruling on a motion in limine and the court's refusal to give several

of his tendered jury instructions. We find that the court's decision to appoint the expert

chosen by the State's Attorney requires us to reverse the order and remand this matter for

new proceedings on the respondent's recovery petition. As such, we need not address

these additional issues.

¶ 12 An overview of the Act will be helpful to our resolution of the question before us.

Under the Act, the State may file a petition seeking the indeterminate commitment of a

criminal defendant in lieu of prosecution if prosecutors believe that defendant is sexually

dangerous. People v. Burns,

(2004). The Act defines a sexually

dangerous person as someone who suffers from a mental disorder "coupled with criminal

propensities to the commission of sex offenses" and has shown a propensity to commit

acts of sexual assault or molestation against children. 725 ILCS 205/1.01 (West 2012).

Once the State files a petition seeking to commit a respondent, the court must appoint two

psychiatrists or psychologists to examine the respondent to determine whether he meets

these criteria. 725 ILCS 205/4 (West Supp. 2013) (requiring the court to appoint "two 5 qualified evaluators"); 725 ILCS 205/4.01 (West Supp. 2013) (defining a "qualified

evaluator" as a licensed physician or psychologist "or any other licensed professional

who specializes in the evaluation of sex offenders"). We emphasize that the two

evaluators are chosen by the court, not by the parties. The court must then hold a hearing

to determine whether the respondent is a sexually dangerous person as defined by the

Act. At least one of the court-appointed psychiatric experts must testify. People v.

Trainor,

(2001).

¶ 13 Although proceedings under the Act are civil in nature (725 ILCS 205/3.01 (West

2012)), many of the protections afforded criminal defendants are also applicable here.

This is because the proceedings "may result in deprivation of liberty and incarceration in

the penitentiary for psychiatric treatment." Trainor,

. A respondent in

sexually dangerous persons proceedings has the right to a jury trial and the right to a

court-appointed attorney if he cannot afford to retain private counsel. 725 ILCS 205/5

(West 2012). The State must prove that the respondent meets the criteria for commitment

beyond a reasonable doubt. 725 ILCS 205/3.01 (West 2012).

¶ 14 At any time after being committed under the Act, a respondent may file a recovery

application alleging that he is no longer a sexually dangerous person. Most of the

procedural safeguards applicable to proceedings on the State's commitment petition are

also applicable to proceedings on a recovery application. Trainor,

.

There are, however, two differences. At a recovery hearing, the State must prove the

respondent is still a sexually dangerous person by clear and convincing evidence, rather

than the more exacting beyond-a-reasonable-doubt standard. 725 ILCS 205/9(b) (West 6 2012). In addition, the respondent is to be examined and evaluated by an evaluator or

team of evaluators at the direction of the Director of the DOC, not by court-appointed

evaluators. 725 ILCS 205/9(a) (West Supp. 2013). Significantly for purposes of this

appeal, the evaluators are selected by the DOC, not by either of the parties.

¶ 15 The Act does not explicitly provide either party a right to a court-appointed expert

in addition to those selected by the court for commitment proceedings or by the DOC for

recovery proceedings. People v. Craig,

(2010). However,

courts have held that a respondent is entitled to the assistance of a court-appointed

psychiatric expert at the State's expense if he can show that the evaluators chosen by the

DOC are biased against him. Burns,

; Craig,

.

In addition, a respondent is permitted to retain an expert of his choosing at his own

expense and present any relevant evidence to the court. See 725 ILCS 205/9(a) (West

2012) (providing that the court "shall consider" the recovery report prepared by the

evaluators chosen by the DOC along with "any other relevant information submitted by

or on behalf of" the respondent); 725 ILCS 209/9(c) (West 2012) (providing that if a

respondent refuses to speak with the evaluators assigned by the DOC, he may only

introduce expert testimony from an expert retained to review his records).

¶ 16 The respondent argues that the court erred and violated his constitutional rights by

granting the State's motion for the appointment of an independent expert. His argument

is twofold. First, he contends that the State was not held to the same standard a

respondent must meet in order to have a court-appointed independent expert–that is, the

State was allowed to have the expert of its choice appointed without demonstrating any 7 bias on the part of the evaluators chosen by the DOC. Second, he argues that the court

compounded this error by denying his request to appoint an independent expert.

¶ 17 We review de novo an individual's contention that his constitutional rights have

been violated. We also review de novo questions of statutory interpretation. People v.

Craig,

(2010). Applying this standard, we agree with the

respondent that the court erred by granting the State's motion and appointing the expert of

the State's Attorney's choice. We further agree that the court's denial of the respondent's

request for the appointment of an independent expert in the face of this decision ran afoul

of the requirements of due process.

¶ 18 We reach these conclusions for three reasons. First, we find that the Act does not

contemplate the appointment of an independent expert chosen by the State's Attorney.

Second, assuming there are unusual circumstances under which the State may object to

the report prepared by the DOC's evaluation team, in this case, the State was allowed its

choice of expert without showing that such circumstances existed. Third, if the State has

the benefit of choosing its own expert, denying the respondent the right to a court-

appointed expert at the State's expense violates due process.

¶ 19 As the State acknowledges, nothing in the Act or any cases interpreting it

expressly provides the State the right to a court-appointed expert of its choice. However,

as the State correctly notes, nothing in the Act or cases expressly prohibits such an

appointment either. As both parties note, all of the cases addressing the right to a court-

appointed independent expert deal with a respondent's request for a court-appointed

expert. As such, they provide little guidance in answering the question before us. 8 ¶ 20 The respondent argues that, at the very least, the State should be held to the same

standard as a respondent if it wants to have an independent expert appointed to present

evidence on its behalf. The State argued at trial that its request for the appointment of an

independent psychiatrist should be treated as the equivalent of a nonindigent respondent's

decision to retain an expert of his choice at his own expense. On appeal, the State

contends that it should be entitled to have its chosen expert appointed without

demonstrating any bias on the part of the DOC evaluators because its role is different

from that of the respondent and it bears the burden of proof by clear and convincing

evidence. We find no support in the Act for the State's position.

¶ 21 We have set out the procedures put in place by the legislature under the Act in

detail. As we have emphasized, both stages of proceedings under the Act call for the

respondent to be evaluated by professionals who are not chosen by either party. This

procedure contemplates reliance on impartial experts rather than a battle of experts

retained by the parties.

¶ 22 We need not go so far as to hold that there are never circumstances under which

the State may object to the report prepared by the evaluators chosen by the DOC.

However, we believe it is abundantly clear that the State is not entitled to object simply

because it does not agree with the conclusion of the evaluators and does not want

prosecutors' "hands tied."

¶ 23 As previously discussed, a respondent is only entitled to the assistance of a court-

appointed expert at the State's expense in cases where the respondent can demonstrate a

bias on the part of the evaluators assigned to prepare the report. Burns,

. 9 A respondent is not entitled to have a court-appointed expert merely because the

evaluators find that he has not recovered. See Burns,

(rejecting this

contention). Rather, the respondent must show that the evaluators "will not give an

honest and unprejudiced opinion of the respondent's mental condition." Burns,

. Here, the State was not held to that standard. The State did not even allege,

much less demonstrate, that the evaluators were biased against the State. Given that it is

the respondent whose liberty is at stake in proceedings under the Act, it would be absurd

to hold the State to a lower standard than the respondent. Thus, assuming the State is

entitled to object to the DOC evaluation under any circumstances, it was not so entitled

here.

¶ 24 Moreover, even if the State can demonstrate some sort of extraordinary

circumstance justifying the appointment of an additional expert to examine the

respondent, it would not be entitled to choose that expert. As we will explain next, if the

State is allowed to choose a psychiatric expert, due process requires that the respondent

be given the same right. However, this procedure would be at odds with the Act's

provisions calling for the appointment of impartial psychiatric experts not chosen by

either party. We conclude that the court erred by granting the State's motion for the

appointment of an independent expert.

¶ 25 As discussed earlier, the respondent further argues that this error was compounded

when the court denied his request to appoint an independent expert. We agree. We

further find that this decision impinged on his right to due process of law.

10 ¶ 26 As previously discussed, the trial court reasoned that the respondent could not

demonstrate bias on the part of the evaluators chosen by the DOC to prepare the report.

This reasoning overlooks the rationale supporting those cases which hold that due process

does not require the appointment of an independent expert for the respondent absent a

showing of actual bias on the part of the experts chosen by the DOC. Our supreme court

explained in Burns that the people chosen by the DOC to prepare the sociopsychiatric

report for a recovery petition are generally the people who treat the respondent. In light

of this, the evaluators have a professional obligation to the respondent as a patient.

Burns,

. It is because of this relationship that courts have found that

due process does not require the appointment of an independent expert in most cases.

Burns,

. In addition, as we have repeatedly emphasized, these

evaluators are chosen by the DOC, not by the State's Attorney. As such, absent a

showing to the contrary, it is reasonable to presume that they will be impartial.

¶ 27 This presumption of impartiality does not apply to a psychiatric expert chosen by

the State's Attorney. An expert chosen and retained by an adverse party is, by definition,

not impartial. Thus, if the State is allowed to choose its own expert, due process

demands the appointment of an independent examiner for the respondent. Under the

circumstances of this case, the court's denial of the respondent's request ran afoul of this

requirement.

¶ 28 For the foregoing reasons, we find that the appointment of an independent expert

of the State's choosing would require the appointment of an expert for the respondent in

order to comport with due process. As stated earlier, however, the Act does not 11 contemplate this type of battle between party-retained experts. As such, we conclude that

the Act does not allow the State to seek the appointment of its own chosen expert.

¶ 29 For these reasons, we reverse the order of the court finding the respondent to be a

sexually dangerous person subject to commitment. We remand the matter to the trial

court for new proceedings on the respondent's recovery petition that are consistent with

this decision.

¶ 30 Reversed; cause remanded.

12

NO. 5-13-0416

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Johnson County. ) v. ) No. 99-CF-106 ) JAMES E. GRANT, ) Honorable ) James R. Williamson, Respondent-Appellant. ) Judge, presiding. ________________________________________________________________________

Opinion Filed: March 18, 2015 ________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Judy L. Cates, P.J., and Honorable Thomas M. Welch, J., Concur ________________________________________________________________________

Attorney Cord Z. Wittig, Kruger, Henry & Hunter, 110 W. 5th Street, P.O. for Box 568, Metropolis, IL 62960 Appellant ________________________________________________________________________

Attorneys Tambra K. Cain, Johnson County State's Attorney, Johnson County for Courthouse, Vienna, IL 62995; Patrick Delfino, Director, David J. Appellee Robinson, Deputy Director, Perry Miller, Staff Attorney, State's Attorneys Appellate Prosecutor, 725 South Second Street, Springfield, IL 62704 ________________________________________________________________________