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12/09/96 PEOPLE STATE ILLINOIS v. EDWARD LOWITZKI

December 9, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EDWARD LOWITZKI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael F. Czalja, Judge Presiding.

Released for Publication January 29, 1997.

The Honorable Justice Buckley delivered the opinion of the court. Wolfson and Braden*, JJ., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a stipulated bench trial, defendant, Edward Lowitzki, was convicted of theft and sentenced to four years' imprisonment in the Illinois Department of Corrections. On appeal, defendant argues: (1) the trial court erred in granting the State's motion in limine, seeking to preclude the defendant from presenting an insanity defense based upon pathological gambling; (2) the trial court erred in granting the State's motion in limine, seeking to bar defendant from calling witnesses in support of his insanity defense on grounds that they were post-occurrence lay witnesses; and (3) the trial court's ruling barring defendant from calling witnesses at trial or raising an insanity defense violated his state and federal constitutional rights.

Defendant was charged with the theft of $101,004.14 from the Palatine High School's Very Important Person's Club. Defendant's son was a member of the club, and defendant served as treasurer. The club had been raising money for students to attend a music festival in Hawaii.

During the discovery stage of trial, defense counsel informed the State that it intended to raise the affirmative defense of insanity based upon pathological gambling. The State responded by filing a motion in limine, which sought to prevent defendant from raising this insanity defense. The State asserted that, as a matter of law, pathological gambling could not be raised as an insanity defense against a nongambling offense, such as theft. The State also asserted that defendant was improperly attempting to use post-occurrence lay witnesses to give expert testimony on his state of mind at the time of the occurrence. A hearing followed where the following testimony was elicited.

Dr. Henry Lesieur, a professor of criminal justice and the chairperson of the Department of Criminal Justice Sciences at Illinois State University, testified for the defense. Dr. Lesieur holds a Ph.D. in sociology and has written several articles on pathological gambling. He was one of six or seven committee members who drafted the criteria for pathological gambling on the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Third Edition Revised (DSM-III-R). Dr. Lesieur is also a member of the board of directors and the executive board of the National Council on Problem Gambling. He is a member of the American Psychiatric Association and works in a group on disorders of impulse control. Dr. Lesieur testified that pathological gambling has been recognized as a disease by the American Psychiatric Institute, the American Psychiatric Association, and the World Health Organization.

Dr. Lesieur stated that he is not a psychiatrist, medical doctor, psychologist, or social worker. His expertise involves the diagnosis of pathological gambling, but he does not treat pathological gamblers. Dr. Lesieur testified that his belief is that once a person has reached the desperation phase of his or her illness, that person is unable to conform his or her conduct to the law.

On August 28, 1992, more than a full year after the alleged theft occurred, Dr. Lesieur interviewed defendant for three hours and administered a questionnaire developed by the American Psychiatric Association. Dr. Lesieur then made an assessment of defendant regarding the nature of his thinking at the time of the alleged theft. Dr. Lesieur found that defendant was a pathological gambler and was under the delusion that he was a professional gambler. In Dr. Lesieur's opinion, defendant was unable to conform his conduct to the law. Dr. Lesieur did admit, however, that there are people who reach desperate financial conditions due to pathological gambling and seek help without breaking the law.

Dr. Lesieur further testified that psychiatrists have referred patients to him in order to determine whether the patients fit the criteria for pathological gambling. Yet, he has never been asked by a psychiatrist to diagnose a patient as having the disorder of pathological gambling. He also stated that in most situations where there is a question of whether a patient is suffering from a forensic psychiatric condition, such as insanity, he would refer the patient to a forensic psychiatrist rather than diagnose that patient himself.

Christopher Anderson, a clinical psychotherapist, also testified for the defense. He has a Masters of Science in clinical counseling and is himself a recovering pathological gambler. At the time of trial, he had been diagnosing individuals who were thought to be pathological gamblers for five years.

Anderson testified that he first met defendant at a Gamblers Anonymous meeting in February 1991. He later examined defendant by asking him 20 questions used in Gamblers Anonymous, of which defendant answered 19 affirmatively. Defendant's answers led Anderson to conclude that he was a pathological gambler. Anderson opined that defendant could not conform himself to the rules and regulations of society from May 1990 to May 1992, encompassing the time of the alleged theft.

Anderson further testified that in conducting his examination of defendant, he looked over the reports of a Dr. Valerie Lorenz and Arnie Wexler. Anderson stated that he agreed with their findings that defendant was a pathological gambler, and that a person in the desperation stage of pathological gambling is insane. He also stated that he knew by inference that Dr. Lorenz and Wexler would state that ...


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