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In Re King





Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding.


On February 1, 1979, the petitioner Henry King, Jr., was found not guilty by reason of insanity (NGRI). (Ill. Rev. Stat. 1979, ch. 38, par. 1005-2-4.) The petitioner was committed to the custody of the Department of Mental Health and Developmental Disabilities (DMHDD). On May 11, 1981, the facility director of Manteno filed a notice with the court pursuant to section 5-2-4(d)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-2-4(d)(2)) of his intention to temporarily release King from Manteno for a series of 24-hour home visits. On January 20, 1982, the petitioner himself petitioned for unconditional release and for a change of venue. Following argument and a hearing, the court denied King's motions for unconditional release and change of venue and also denied the petition for temporary release. King appeals from these three orders, raising questions of equal protection and due process.

The evidence before the court consisted of the testimony of five witnesses; two psychiatrists, one mental health specialist, who was Henry King's current caseworker; Henry King; and King's wife, Bernice.

Dr. Gerson Kaplan, the first psychiatrist to testify, stated that he examined King only once for approximately one hour. His diagnosis was that King had an "anti-social personality disorder with a history of alcoholism, psychosis, and brain damage." Kaplan stated that, "at this time, * * * I find no evidence of psychosis * * *. My diagnosis is anti-social personality disorder. However, I do find the defendant is dangerous to others. So the question of whether he is subject to involuntary admission, I think, is a debatable one." (Emphasis added.) To the question of whether or not Mr. King was mentally ill, Kaplan stated that he could only answer in a "qualified way." According to Kaplan, "anti-social personality disorder, is one of the psychiatric diagnoses that is acceptable * * * and it's listed in all text books on psychiatry. So from that viewpoint it is a mental illness." However, Kaplan continued, from "[m]y experience as a forensic psychiatrist, my understanding is usually that anti-social personality disorder is not considered a mental illness."

Dr. Robert Wettstein, the second psychiatrist to testify at the hearing, testified that he had formally examined King on two occasions and had spoken to him informally on the hospital grounds on a number of occasions. Wettstein had also reviewed King's DMHDD treatment records and consulted with Dr. David Das, the psychologist who was King's former case manager at Manteno. Wettstein testified that in his opinion, King was "not mentally ill at this time." Wettstein also testified that in his opinion an antisocial personality disorder is not a mental illness. Wettstein stated that since he did not believe King to be mentally ill, he did "not think he's reasonably expected, on the basis of mental illness, to reasonably inflict serious harm in the near future." Wettstein also testified that in his opinion a series of 24-hour passes would be beneficial to King. However, Wettstein further stated that there was a "very small risk" that unsupervised home visits would cause King to be a "danger to other people." Also, there was "a small risk" that King, who had a history of alcohol abuse, would have a drink while on an unsupervised pass.

Mental health specialist, Erma Volden, King's present case manager, testified that King had not been a behavioral problem at Manteno and was looked up to by many other patients. She also testified that she had no personal knowledge of King using alcohol at Manteno. However, she did admit that she had read a report which said that King had an incident with alcohol in December of 1979.

Henry King testified that he would not take an alcoholic drink while on a home visit. He also testified that he never planned to take a drink again because it had kept him "away from his family for eight long years." On cross-examination, King testified that alcohol had brought on the killing of two women. He claimed that although alcohol was prohibited at Manteno, various staff members and patients had offered him alcohol, which he had refused.

Bernice King was the last witness to testify. She testified that she was not afraid of her husband and that in her opinion he would not "do anything to hurt me or the child." She also testified that she kept no alcoholic beverages or firearms in her home. Mrs. King testified to the fact that she was diabetic, that she had heart trouble, and that these problems caused her only limited mobility.

At the close of the testimony, the court held that "under all the circumstances and totality of the circumstances and particularly the professional's opinion, the court is going to deny the petition" for unconditional release. The court also denied the request for 24-hour unsupervised passes.

During the course of the hearing, the court made two rulings. The court first ruled that the statutory provision of clear and convincing evidence was the appropriate standard of proof in a temporary release hearing. Second, the court ruled that King bore the burden of proof on his petition for unconditional release.

Before proceeding to the various issues raised by the petitioner on appeal, it is necessary to set out the scheme codified by the legislature in section 5-2-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-2-4) for the hospitalization, treatment and release of patients adjudicated NGRI.

Under section 5-2-4, once there has been a finding or a verdict of not guilty by reason of insanity, the defendant is ordered to DMHDD for an evaluation. Within 30 days, DMHDD reports its evaluation to the court and the court holds a hearing to determine if the defendant is subject to involuntary admission. A defendant is subject to involuntary admission if he is mentally ill and because of this condition is reasonably expected to inflict serious physical harm upon himself or another in the near future. If the court so finds, the defendant is committed to DMHDD for an indefinite period of time, not to exceed the maximum length of time, less credit for good behavior, for the maximum sentence of the most serious crime for which he was acquitted. When the facility director determines that the defendant is no longer subject to involuntary admission, he gives written notice to the court which rendered the verdict, the State's Attorney and the defense attorney. The notice sets out the basis for the recommendation, and within 30 days the court holds a hearing to determine if there has been a change of condition or whether the defendant is still subject to involuntary admission. If the NGRI initiates the request, he can file a petition for conditional release or discharge and the court sets a hearing within 30 days. If the court believes it appropriate, it can order an impartial examination of the defendant by a psychiatrist or clinical psychologist and the report is made available at the hearing. When the State makes a request for change, it has the burden of going forth. When the NGRI has initiated the request, the burden of proof rests on him. The evidence is presented in open court with the right to confrontation, cross-examination and counsel. Findings of the court are to be by clear and convincing evidence.

• 1 The petitioner's first contention on appeal is that the court erred in its ruling that the petitioner bore the burden of proof on his petition for unconditional release. The court depended upon the section in the statute which so provides. The petitioner claims that this provision of the statute is unconstitutional. Specifically, the petitioner claims that this reliance on the statute denied him due process and that the provision violates the constitutional safeguard of equal protection.

The petitioner makes his due process argument by citing cases involving the burden of proof necessary for an initial commitment in a juvenile proceeding (In re Winship (1970), 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068); and an initial commitment under the Sexually Dangerous Persons Act (People v. Pembrock (1976), 62 Ill.2d 317, 342 N.E.2d 28). According to the petitioner, these cases support a conclusion that where a liberty interest is at stake, due ...

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