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In re Detention of Swope

September 16, 2003


Appeal from the Circuit Court of Ogle County. No. 98--MR--25 Honorable Timothy P. Nieman, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN


Petitioner, William G. Swope, appeals from the order of the trial court denying his petition for conditional release pursuant to section 60 of the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/60 (West 2000)). We affirm.

On November 9, 1999, Swope was adjudicated a sexually violent person and committed to the custody of the Department of Human Services (DHS). This court affirmed the adjudication and commitment in In re Detention of Swope, No. 2--99--1272 (2001) (unpublished order under Supreme Court Rule 23). On May 24, 2001, Swope filed a petition for conditional release. After a hearing, the trial court denied Swope's petition. This appeal followed.

Swope first contends that he did not receive a fair hearing on his petition because his expert witness was deprived of the opportunity to discuss his treatment progress with treatment providers at DHS while the State's expert was allowed to engage in such discussions.

On July 24, 2000, Swope petitioned the court to appoint the Institute for Psychological Therapies (the Institute) to perform a reexamination of him, pursuant to section 55 of the Act (725 ILCS 207/55 (West 2000)). The court granted the motion and ordered the Institute to examine Swope, prepare a report, and testify in court. Hollida Wakefield and Ralph Underwager of the Institute performed the examination and prepared the report. On two status dates during the course of the examination, Swope's counsel told the court that two DHS employees refused to talk to Underwager. On the second status date, Swope's counsel told the court that he would subpoena the workers and depose them. Eventually, Thomas Speaker of the DHS was deposed, and the deposition was used by Wakefield and Underwager "in lieu of an interview." However, Wakefield and Underwager noted in their report:

"[T]his procedure is not adequate. An attorney cannot be expected to know what questions to ask and what issues need to be explored more fully. Therefore, it is our professional opinion that Mr. Swope has been seriously disadvantaged by the state's refusal to allow professional psychological contact with the treatment staff. Once a person has been committed, it is crucial to be able to assess as fully and accurately as possible what changes have been brought about and observed in the course of treatment provided as the civil commitment law requires. *** Not having full access to comprehend the process and the outcomes limits Mr. Swope's ability to get a fair and complete assessment of his progress."

At the hearing on Swope's petition, Wakefield testified that her evaluation of Swope was made "more difficult" by the refusal of the DHS employees to answer her questions, especially as to whether his behaviors had improved, stayed the same, or deteriorated. The State presented the testimony of clinical psychologist Barry Mark Leavitt, who had spoken with Swope's treatment team in preparing his evaluation, and Thomas Speaker, the member of Swope's treatment team who had been deposed by Swope's attorney.

Swope argues that his right to due process was violated because his expert was denied the opportunity to interview the DHS treatment providers while the State's expert was allowed to speak to them. Although proceedings under the Act are considered as civil in nature, a petitioner under the Act is entitled to all the constitutional rights afforded a criminal defendant, including the right to due process of law. In re Detention of Kortte, 317 Ill. App. 3d 111, 115 (2000). The right to due process is the right to a fundamentally fair trial in which the State has no strategic advantage and the respondent can defend himself on a level playing field. Kortte, 317 Ill. App. 3d at 115-16.

We conclude that it was a violation of Swope's right to due process to allow the DHS employees to decline to talk to Swope's expert while they talked to the State's expert. The core meaning of due process is fairness. People v. Collins, 333 Ill. App. 3d 20, 26 (2002). Procedural due process requires that a defendant have the right to relevant, competent evidence, and that the State take steps to insure that an indigent defendant has a fair opportunity to present his case. In re Detention of Allen, 331 Ill. App. 3d 996, 1003 (2002). We fail to see the fairness of a situation in which State witnesses may refuse to talk with the petitioner's experts yet may speak with the State's experts. Both parties' experts rely to some extent on a petitioner's current treatment and behavioral changes in the course of the treatment to determine if that person should be released. Wakefield clearly stated that Swope's ability to get a fair and complete assessment of his progress was limited by the incomplete access she had to Swope's treatment staff. The State had access to this information but refused to give it to Swope. This is not a "level playing field."

However, we cannot say that Swope attempted to enforce his right to a fair hearing. While Swope's attorney twice informed the trial court that the DHS workers were not talking to his experts, counsel never sought a court order to remedy the situation. On October 31, 2000, the following colloquy took place:

"MR. MILLER [Swope's attorney]: *** Judge Roe approved an order allowing me to engage some experts to examine Mr. Swope. They're from the Minneapolis, Minnesota area. I got a call from Doctor Underwager, who is one of the two, last week, stating that he hasn't quite finished the report. He wanted to talk to or take a deposition of two of the people who are employed by the Department of Human Services, that's where Mr. Swope is in custody, a John [sic] Speaker and a Sean Jumper, J-u-m-p-e-r. I said since we had a status hearing coming up, I would bring this up with the Assistant Attorney General, Mr. Curran, and with the court. Mr. Curran has no objection to an order being entered.

MR. CURRAN [Assistant Attorney General]: Although, you know, Judge, just subsequent to our thinking about it, I don't think we can really order a ...

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