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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The respondent, Robert W. Burns, was adjudicated a sexuallydangerous person in 1986 and committed to the custody of theDepartment of Corrections (DOC). On May 14, 2001, he filed anapplication for discharge pursuant to section 9 of the SexuallyDangerous Persons Act (Act) (725 ILCS 205/9 (West 2000)). Attached to his petition was a motion for an independentpsychiatric examination, a motion to strike Dr. Mark Carich'ssocio-psychiatric report, and a request for appointment of anindependent guardian. The trial court denied the motions. Ajury found that the respondent was still sexually dangerous andrejected his request for release. On appeal, the respondentargues that: (1) the trial court erred in denying his motion foran independent psychiatric examination; (2) the court erroneouslydenied the motion to strike Dr. Carich's report; (3) the trialcourt erred in denying his motion for appointment of independentguardian; (4) the court's refusal to tender the jury instructionsoffered by defense counsel was improper; and (5) the State failedto prove that he was still sexually dangerous beyond a reasonabledoubt. We reverse in part, affirm in part and remand the causefor further proceedings.

The respondent filed his second application for discharge inMay of 2001. Attached to his application were several pro semotions. First, the respondent moved for an independentpsychiatric examination, alleging that psychiatrist Ijaz Jatalawas not a licensed psychiatrist and was biased. No supportingdocumentation was included with the motion. The respondent'ssecond motion was a request to strike the socio-psychiatricreport submitted to the court pursuant to the Act. In thismotion, the respondent claimed that the report was insufficientbecause Dr. Carich was not a licensed psychologist and because nosociologist participated in its preparation. In his thirdmotion, the respondent argued that the DOC, as his guardian, wasnot acting in his best interests because of undue bias againsthim.

After hearing arguments, the trial court denied therespondent's request for an independent examination. The courtfurther determined that Dr. Carich's psychological report met therequirements of the Act and denied the motion for an independentguardian.

At trial, Dr. Carich testified that he has a Ph.D. incounseling and received his undergraduate diploma in psychology. He has coordinated the DOC's sexual offender treatment programfor more than 10 years and has testified in at least 80 casesinvolving sexually dangerous persons. Dr. Carich testified thatof those cases, he has supported 19 committed persons fordischarge.

The respondent was placed in the DOC program in 1986 foradmittedly abusing more than 40 victims. His victims ranged inage from infant to nine years old. Dr. Carich testified that therespondent had made progress since his admission. He cooperatedwith the DOC staff and regularly attended all group meetings. However, in 1998, the respondent was suspended from the programfor violating DOC rules by engaging in sexual intercourse withanother member of his group. The respondent was laterreinstated. Shortly after his reinstatement, he voluntarilydropped out of the program. Dr. Carich did not believe that therespondent was ready to return to society.

The socio-psychiatric report prepared by Dr. Carich andsigned by Dr. Jatala, Social Worker Nancy Henderson and WardenMichael Holmes was not entered as evidence. At the conclusion ofthe trial, the jury found that the respondent was still sexuallydangerous and denied his application for recovery.

On appeal, the respondent first claims that the trial courterred in denying his motion for an independent psychiatricexamination. He claims that he has a right to an independentexamination under the due process clause of the United StatesConstitution. U.S. Const., amend. XIV.

The due process clause of the federal constitution imposesconstraints on governmental regulations that deprive persons ofliberty or property interests. Mathews v. Eldridge, 424 U.S.319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The right to dueprocess of law is the right to a fundamentally fair trial. Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S.Ct. 1038 (1973). Procedural due process guarantees that adefendant has the right to present relevant, competent evidenceand that the State must take steps to ensure that an indigentdefendant has a fair opportunity to present his defense. Ake v.Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985). The State may not maintain a strategic advantage over a defendantwhen that advantage casts a pall on the proceedings. Ake, 470U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087.

When considering a due process issue, courts must considerthree factors. Those factors are: (1) the liberty or propertyinterest with which the State has interfered; (2) the risk oferroneous deprivation of the interest through the proceduresalready in place and the probable value of additional orsubstitute procedural safeguards; and (3) the effect theadministrative and fiscal burdens would have on the State. Mathews, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893.

There is little question that the respondent's right toliberty is jeopardized under the Act. See People v. Trainor, 196Ill. 2d 318, 752 N.E.2d 1055 (2001). Analysis of the secondfactor, however, is more complex.

At any stage in a commitment proceeding, a respondent is atserious risk of his liberty being erroneously deprived. Consequently, he must be provided the essential protectionsavailable at a criminal trial, i.e., the right to a jury,representation by counsel and proof of sexual dangerousnessbeyond a reasonable doubt. People v. Olmstead, 32 Ill. 2d 306,205 N.E.2d 625 (1965); People v. Pembrock, 62 Ill. 2d 317, 342N.E.2d 28 (1976). These protections are equally available at arecovery proceeding. See Trainor, 196 Ill. 2d 318, 752 N.E.2d1055.

Under notions of due process, we find that these rightsinclude the right to an independent psychiatric examination. Cf. People v. Knuckles, 165 Ill. 2d 125, 650 N.E.2d 974 (1995)(holding that, as a matter of due process, an indigent defendantin a criminal proceeding is entitled to psychiatric assistancewhen his mental capacity is at issue); People v. Botruff, No. 3--01--0223 (June 6, 2002) (finding that a statutory right to theappointment of an independent expert exists under the SexuallyViolent Persons Act (725 ILCS 207/1 et seq. (2000))). Thefinding necessary to obtain release under the Act requires thetestimony and analysis of an expert in the field of sexuallydangerous behavior. Disallowing a request for an independentexamination places the respondent at an extreme disadvantage. The jury is left only with the State's expert opinion as to therespondent's mental state. Typically, that expert testifies thatthe respondent is still sexually dangerous. Unless therespondent is provided an independent psychiatric expert, he isvirtually incapable of rebutting the State's evidence.

The State contends that the respondent is allowed to bring amotion for an independent examination at an application fordischarge proceeding and that this procedure provides an adequatesafeguard against improper commitment. We recognize that undercurrent commitment procedures, the respondent can move for theappointment of an independent psychiatrist. See generally Peoplev. Finkle, 214 Ill. App. 3d 290, 573 N.E.2d 381 (1991). However,such motions are often denied by the court because the respondentfails to provide evidence of bias or prejudice. Finkle, 214 Ill.App. 3d 290, 573 N.E.2d 381 (requiring committed persons to setforth particular facts demonstrating that treating professionalsemployed by Department would not fairly and objectively renderassistance). Due to the respondent's lack of means with which toprove such a theory, we find this "additional safeguard"inadequate.

The third factor involves consideration of the fiscal andadministrative burdens that would arise from providing acommitted person with an independent expert examination. Werealize that the imposition of the right to an examination at therecovery stage imposes a significant burden on the State. TheAct includes no limitation on the number of applications forrecovery that can be filed or the time between each filing. However, we are not in a position to alter these oversights. SeeTrainor, 196 Ill. 2d 318, 752 N.E.2d 1055 (Act's impact on Stateresources is a legislative matter for the General Assembly toaddress). Nor do we find the appointment of an independentexpert unduly burdensome. Accordingly, we hold that the trialcourt violated the respondent's right to due process in denyinghis request for an independent psychiatric examination.

In light of our finding, it is unnecessary to discuss theremaining issues in this case. However, in the interest ofjudicial economy, we will address the respondent's challengeagainst Dr. Carich's report.

The respondent claims that the trial court erred in denyinghis motion to strike the socio-psychiatric report. Specifically,the respondent argues that Dr. Carich is not qualified to preparethe report because he is not a licensed psychologist. He furtherclaims that the report is defective because it was not signed bya sociologist.

After a person has been found to be sexually dangerous andhas been committed to the custody of the DOC, he may apply forconditional release or discharge pursuant to section 9 of theAct. Section 9 provides that the DOC must submit a socio-psychiatric report "prepared by the psychiatrist, sociologist,psychologist and warden of, or assigned to, the institutionwherein such applicant is confined." 725 ILCS 205/9 (West 2000).The court shall consider the report and any other relevantinformation submitted by the respondent.⁽¹⁾ 725 ILCS 205/9 (West2000).

The Act does not impose any licensing requirements forpsychologists who sign the socio-psychiatric report, and we willnot engraft a licensing qualification where such a requirement isnot clearly apparent. It should also be noted that Dr. Carichhas been found qualified to render opinions for purposes ofrecovery applications in other cases. See People v. Sizemore,311 Ill. App. 3d 917, 726 N.E.2d 204 (2000); People v. McDougle,303 Ill. App. 3d 509, 708 N.E.2d 482 (1999). We therefore rejectthe respondent's argument that Dr. Carich's report did notsatisfy section 9 of the Act. See Sizemore, 311 Ill. App. 3d917, 726 N.E.2d 204.

Any claim that Nancy Henderson fails to fulfill therequirements of section 9 is equally misplaced. Theabbreviations after Henderson's name, M.S.A., L.S.W., andL.C.S.W., indicate that she has a master's degree in social workand is a licensed clinical social worker. The trial courttherefore did not err in denying the respondent's motion tostrike Dr. Carich's report.

The judgment of the circuit court of La Salle County isreversed in part, affirmed in part and remanded for furtherproceedings consistent with this opinion.

Reversed in part, affirmed in part; cause remanded.

HOLDRIDGE, J., concurs.

PRESIDING JUSTICE McDADE concurs in part and dissents inpart:

The majority finds (1) that the trial court violated therespondent's right to due process in denying his request for anindependent psychiatric examination, and (2) that the court didnot err in denying the respondent's motion to strike Dr. Carich'ssocio-psychiatric report. I concur in the first finding andagree that the matter should be reversed and remanded for all ofthe reasons set forth in the majority opinion and, for thereasons that follow, I dissent from the second finding.

I dissent because of my belief that the State's thresholdobligation in a recovery proceeding -- the socio-psychiatricreport -- has not been met because I do not think Dr. Mark Carichsatisfies the statutory requirement that treatment be accordedand the respondent be assessed in the report by a "psychologist." More specifically, I agree that the statute does not expresslyrequire that the psychologist be licensed, but I do think itrequires him to be a psychologist.

The Sexually Dangerous Persons Act (Act) (725 ILCS 205/1.01et seq. (West 2000)), does not contain an explicit statement ofpurpose. The courts have, however, determined and described thelegislative purpose. The most recent statement of that purposeby the Illinois Supreme Court is found in People v. Trainor, 196Ill. 2d 318, 752 N.E.2d 1055 (2001).

"The Act's purpose is twofold: (1) toprotect the public by sequestering a sexuallydangerous person until such a time as theindividual is recovered and released, and (2)to subject sexually dangerous persons totreatment such that the individual mayrecover from the propensity to commit sexualoffenses and be rehabilitated." Trainor, 196Ill. 2d at 323-24, 752 N.E.2d at 1058-59.

Sexually dangerous persons are statutorily defined as havinga "mental disorder" coupled with criminal propensities to commitsex offenses and demonstrated propensities toward acts of sexualassault or acts of sexual molestation of children. 725 ILCS205/1.01. The determination of sexual dangerousness for purposesof commitment requires an examination and evaluation by a"qualified psychiatrist" as defined in 725 ILCS 205/4.01 and ajury finding beyond a reasonable doubt.

The Trainor court noted that the 1963 amendments to the Actincluded a provision quashing all outstanding indictments thatserved as the basis for the civil commitment proceeding. Thecourt observed that the amendment "altered the aim of the Actbecause it focused on the rehabilitative treatment of theoffender rather than punishment," and noted that "under the Act,the State has a statutory obligation to provide care andtreatment for persons adjudged sexually dangerous. This care isdesigned to effect recovery in a facility set aside to providepsychiatric care." Trainor, 196 Ill. 2d at 324-25, 752 N.E.2d at1059, citing People v. Cooper, 132 Ill. 2d 347, 547 N.E.2d 449(1989); Allen v. Illinois, 478 U. S. 364, 106 S.Ct 2988 (1986).

I believe we must consider all of the issues raised by Burnsin the context of this statutory purpose and with the obligationof strict construction and application of the statute. People v.Bruckman, 33 Ill. 2d 150, 210 N.E.2d 537 (1965); People v.Johnson, 322 Ill. App. 3d 117, 749 N.E.2d 402 (2001), rehrgdenied.

Although the recovery proceeding has previously been treatedas qualitatively different from the initial determination andcarrying a lower standard, our supreme court held in Trainor thatin this proceeding as well, the State continues to bear theburden of proving beyond a reasonable doubt that the applicant isstill sexually dangerous, expressly abrogating ten publishedappellate court decisions that held to the contrary.

The threshold requirement for the State in meeting thatburden is a socio-psychiatric report responding to theapplication showing recovery, in which the applicant representsthat he has recovered from the mental disorder which resulted inhis original commitment. The statute tells us that the report"shall be prepared by the psychiatrist, sociologist, psychologistand warden of, or assigned to, the institution wherein suchapplicant is confined." (Emphasis added.) 725 ILCS 205/9.

After carefully fulfilling our obligation to strictlyconstrue and apply the statute with regard to the psychiatrist,the majority then ignores it to find not only that the statutedoes not require a licensed psychologist but also decide that thelegislature did not really mean that it wanted a realpsychologist to work with and evaluate these patients andparticipate in the preparation of the report -- a person with abachelor's degree in psychology and a master's and doctorate ineducational counseling, not in psychology, would be just fine. Ithink this holding, when we give "psychologist" its usual andcustomary meaning, is contrary to the plain language of thestatute and severely undercuts the legislative purpose and theweight of the report in sustaining the State's burden of proof. I wonder if any of us on this panel, being diagnosed with amental disorder and confined until we have recovered, would becontent to be treated and evaluated by a school or familycounselor. Or would want the trial court to rely on a reportbased on the assessments of a person who does not possess thequalifications called for in the statute.

Carich is not and has never been a "psychologist" and hasnever had his psychological competence tested. I would find thathe does not satisfy the plain language of the statute and that heis not trained or demonstrably competent to perform theevaluations and draw the conclusions called for in the socio-psychiatric report.

The majority also rejects respondent's claim that the reportwas not signed by the statutorily-required sociologist. See 725ILCS 205/9 (West 2000). They find no error because the reportwas signed by a social worker, but they advance no reason fortheir apparent conclusion that there is no difference between theskills, functions, and training of sociologists and socialworkers.

As previously indicated, I agree that the outcome in thetrial court must be reversed and the case remanded for a newtrial. Because of what I believe are significant concerns aboutthe qualifications of Dr. Carich to provide the treatment andmake the assessments called for in the statute and because I seeno basis for deciding that the legislature did not intend forservices to be provided and the report to be signed by thesociologist they specified, I would require the circuit court onremand to carefully assess the adequacy and legal sufficiency ofthe socio-psychiatric report to satisfy the State's burden ofproving beyond a reasonable doubt that respondent remainssexually dangerous. I would reverse the order denying themotion to strike the report and, therefore, dissent on themajority's decision to the contrary.

1. In this case, the report was submitted to the court butwas not presented to the jury.