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In re Detention of Lieberman

September 28, 2007


Appeal from the Circuit Court of Cook County 00 CR 8000101. Honorable Dennis J. Porter, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice McBRIDE

Published opinion

In 2006, a jury found respondent, Brad Lieberman, to be a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 1998)). Following a subsequent dispositional hearing, the trial court ordered respondent committed to the Illinois Department of Human Services (DHS) for institutional care in a secure facility. Respondent appeals, arguing that: (1) he is entitled to judgment notwithstanding the verdict; (2) the trial court abused its discretion by admitting evidence of the details of his past crimes; (3) the court erred by excluding expert testimony; (4) the court abused its discretion by denying his motion for a new trial; (5) the court abused its discretion by ordering him confined for institutional care in a secure facility; and (6) the court erred in denying his renewed motion to dismiss based upon his corrected release date.

In 1980, respondent was convicted in the circuit court of Cook County of six counts of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1)) and one count of attempted rape. That same year, respondent was found guilty of one count of rape and one count of attempted rape in Lake County. Respondent was sentenced to a number of concurrent terms of imprisonment, the longest of which required him to serve 40 years in prison.

Following numerous appeals on matters unrelated to the issues raised in this case, respondent was scheduled to be released from the Illinois Department of Corrections (DOC) on January 9, 2000. The present action began on January 6, 2000, when the State filed a petition pursuant to the Act seeking to have respondent adjudicated a sexually violent person and committed to the care and custody of the DHS. The petition alleged that respondent had been convicted of a number of sexually violent offenses and was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence. On February 10, 2005, following a hearing, the trial court found that there was probable cause to conduct further proceedings on the State's petition and ordered that respondent be detained at a facility approved by the DHS until trial.

At respondent's trial, the State presented the testimony of two expert witnesses: Dr. Jacqueline Buck and Dr. Barry Leavitt. Dr. Buck is a clinical psychologist and special evaluator for the DOC. Dr. Buck testified that she conducted one two-hour interview with respondent in October 1999 and reviewed his master file as well as numerous other documents. Her review included psychological and psychiatric evaluations of respondent, police reports, and other court documents provided by the DOC detailing the events that led to respondent's various convictions. Based upon her review and evaluation, Dr. Buck believed that respondent was at a high risk to sexually reoffend if he was released into the community without treatment and, in October 1999, she prepared a report to that effect. Dr. Buck updated her opinion every year thereafter and, although she did not conduct any additional interviews of respondent because he refused to speak with her, Dr. Buck did not believe that an additional interview was warranted because respondent refused to participate in sexual offender treatment. Accordingly, Dr. Buck's opinion had not changed since she prepared her initial 1999 report and she believed that respondent continued to be at a high risk to sexually reoffend.

Dr. Buck testified that, in forming her opinions, she relied upon respondent's criminal history and the facts from cases in which he was convicted of rape and cases in which he was arrested and charged with a sexually related offense. According to Dr. Buck, respondent refused to discuss these crimes with her and characterized them as "just being in the wrong place at the wrong time," "overzealous police officers," and "mistaken identity." Over respondent's objection, the trial court allowed Dr. Buck to describe the facts from the cases that she relied upon in forming her opinion. For example, Dr. Buck testified that respondent gained entry into the victim's home by stating that he was a plumber and that the building's management had sent him to check on leaks. Once inside, respondent moved to the victim's bedroom and asked her to remove items from the closet. When the victim was facing away from him, respondent grabbed her around the throat, held a knife to her throat and threatened to hurt her if she did not comply. Respondent then put the victim on the bed and forced her to perform various sexual acts. Dr. Buck testified in a similar manner as to the facts from respondent's other rape convictions and from cases in which respondent was arrested and charged with a sexual offense. The trial court instructed the jury that this testimony was being offered to show the basis of Dr. Buck's opinions and not to prove the truth of the matters asserted.

In arriving at her opinions, Dr. Buck also considered evidence of respondent's behavior while he was incarcerated in the DOC and in the custody of the DHS. This evidence established that, while in the DOC, respondent told the staff that he was not an inmate because he did not commit the offenses for which he was convicted. During that time, respondent was also found with cannabis, tested positive for morphine, and disciplined five times for drugs or drug paraphanelia. Respondent also received disciplinary reports for his conduct, was placed in segregation numerous times, and engaged in acts of intimidation, threats and other rule violations. Respondent had his visiting privileges revoked after demonstrating inappropriate behavior with a female in the visitor's room and received a disciplinary report after he was found in the visitor's bathroom engaged in sexual activity with a woman. While in the custody of the DHS, respondent exhibited "angry, hostile, aggressive behaviors" on many instances and insisted that he was being illegally detained.

Dr. Buck also reviewed correspondence that respondent wrote to eight women over a period of approximately 10 months while he was incarcerated. On one occasion, respondent wrote to a woman he saw on television in an attempt to begin a friendship with her. In that letter, respondent enclosed a picture of himself and indicated that he was lonely and that he was in prison because he beat up a man who had beaten up his sister. On another occasion, respondent wrote to a women whose picture he had seen in the newspaper, stating "how beautiful she was, "how sweet and how hot," and "how lucky he would be to have a friend like her." In another instance, respondent used "a lot of profanity" in a letter he wrote to a woman whom he was upset with for not attending a prison picnic. Although she acknowledged that many inmates correspond with women outside the prison, Dr. Buck noted that almost all of these women had objected to the letters that respondent sent them. Dr. Buck also acknowledged that respondent only wrote letters to one woman after he was told to stop by the prison staff.

Based upon all of these considerations, Dr. Buck diagnosed respondent with paraphilia not otherwise specified, sexually attracted to non-consenting persons (paraphilia nos). Dr. Buck described the group of paraphilia disorders, which are contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM), as essentially "sexually deviant behaviors," and testified that in this case, "we have what the law calls rape behavior, sexual assaults with non-consenting women." Dr. Buck testified that the first criterion for paraphilia is that there be "intense recurring sexually arousing urges, fantasies or thoughts or behaviors which occur over at least a 6 month period of time," and that respondent met this criterion based on his multiple rapes committed over a 10-month period. The second criterion for paraphilia nos is that these behaviors cause distress or impair respondent's ability to function socially in the workplace or society. Respondent's detention in the DOC and DHS met this criterion, and Dr. Buck testified that respondent is "not able to be in society and function the way other folks do." The final criterion is that respondent must be at least 16 years old at the time of the diagnosis. Respondent met this criterion based on his age at the time of trial.

Dr. Buck explained that respondent suffers from paraphilia notwithstanding that he has not committed any rapes since he was incarcerated in 1980. According to Dr. Buck, respondent has been in a controlled environment in the DOC, which goes "out of [its] way" to protect its females workers. Respondent also continually crossed boundaries and exhibited inappropriate sexual behavior while incarcerated and in the custody of the DHS. Dr. Buck further explained that paraphilia nos is a "very deep-seeded problem" that requires intensive treatment and does not heal itself or go away while someone who suffers from it is in prison. Moreover, although the 15 mental health evaluations respondent underwent while incarcerated did not diagnose paraphilia, Dr. Buck was the first examiner to do a sex-offender-specific evaluation.

Dr. Buck also diagnosed respondent with cannabis abuse and antisocial and narcissistic personality disorders. Dr. Buck described antisocial personality disorder as "the disregard for and violation of the rights of others," and narcissistic personality disorder as someone who is "very grandiose" in thought or behavior, who requires admiration, and exhibits a lack of empathy.

Dr. Buck also conducted a risk assessment using four actuarial tools to determine respondent's risk of committing future acts of sexual violence. Specifically, Dr. Buck employed: (1) the Minnesota Sex Offender Screening Tool Revised (MnSOST-R); (2) the Static-99; (3) the Violence Risk Appraisal Guide (V-RAG); and (4) the Sex Offender Risk Appraisal Guide (SORAG). Respondent scored "very high" under the MnSOST-R, "extremely high" under the Static-99, "high" under the V-RAG, and "extremely high" under the SORAG.

Dr. Buck stated that she looked for mitigating factors to consider in reaching her opinions. According to Dr. Buck, the DHS offers a variety of activities in addition to the core sex offender program. These include ancillary groups, which focus on, among other things, anger management and intermittent relationship skills and substance abuse treatment, and recreation therapy programs, which attempt to teach sex offenders alternative ways of recreating. Dr. Buck testified that respondent has refused to participate in any of these programs and that she was therefore unable to find any mitigating factors. Dr. Buck also considered respondent's age and testified that, because he scored as a psychopath, respondent did not exhibit the usual pattern of decreased crime corresponding to increased age.

Dr. Buck concluded that in her opinion, within a reasonable degree of psychological certainty, respondent suffers from mental disorders that are both congenital and acquired, affect his emotional and volitional capacity, and predispose him to commit future acts of sexual violence. Based upon her clinical evaluation, review of respondent's files, respondent's lack of sex offender treatment, and the actuarial instruments she employed, Dr. Buck opined that it is substantially probable that respondent will continue to commit acts of sexual violence if released into the community.

On cross-examination, Dr. Buck testified that the Association for Treatment of Sexual Abusers (ATSA) recommends the use of multiple sources of information when making evaluations such as those in this case. Dr. Buck was also not aware that several of respondent's convictions were overturned by the appellate court. Dr. Buck acknowledged that in her evaluation she did not rely upon a 1991 psychological examination of respondent conducted by Dr. Michael Guttman, whose examination of respondent revealed "no overt symptoms of gross psychopathology" and no diagnosis of paraphilia, cannabis abuse or narcissistic disorder. Dr. Buck also acknowledged that the inquiry board investigation into respondent's loss of visitation privileges with a woman due to inappropriate behavior in the visitor's room indicated that respondent lost those privileges due to an incident between the woman and her ex-husband, and that the board recommended that respondent's visiting privileges with that woman be reinstated.

According to Dr. Buck, respondent took two Minnesota Multiphasic Personality Inventory tests while he was incarcerated. The psychologist who administered these tests diagnosed respondent with psychosexual disorder and mixed personality disorder with antisocial, narcissistic and dependent features. Dr. Buck acknowledged that the original version of the MMPI, which respondent took in 1986, is no longer recommended for clinical use and was revised because it exaggerated individuals' mental health problems and generally over-diagnosed people with psychological problems. Additionally, the psychologist who performed the MMPI tests did not diagnose respondent with paraphilia nos or cannabis abuse.

According to Dr. Buck, respondent was evaluated by a psychologist and psychiatrist while incarcerated in 1989. The psychologist did not diagnose respondent with paraphilia, cannabis abuse, or narcissistic and antisocial personality disorders, although Dr. Buck testified that these diagnoses were appropriate for these evaluations. The psychiatrist who evaluated respondent concluded that he had no psychiatric history or acute psychiatric problems, and Dr. Buck explained that this diagnosis was consistent with her opinions because respondent is not mentally ill and therefore does not have acute psychiatric problems.

On cross-examination, Dr. Buck also testified that it was important for the results of actuarial instruments to be replicated by other psychologists before they are relied upon to determine if someone should be civilly committed. Dr. Buck acknowledged that Dr. Karl Hanson prepared an article which Dr. Buck considered to be authoritative in the field of sexually-violent-person evaluations indicating that the replication strength of the actuarial instruments upon which Dr. Buck relied was low and that one of those actuarial tools was not intended to assess the risk for sexual recidivism. Dr. Buck also acknowledged that according to Dr. Hanson's article, three of the four risk scales that she used on respondent do not predict the specific kind of recidivism that is at issue in this case and that, according to the American Psychological Association (APA), the ability to predict sexual recidivism is only a matter of general and uncertain probabilities.

Dr. Buck also used a personality inventory called the Hare Psychopathy Checklist -Revised (PCL-R) to assess respondent's risk to recidivate and to substantiate her diagnoses of antisocial and narcissistic personality disorders. She did not ask respondent all of the questions contained in the PCL-R interview schedule because those questions were required to be asked only if respondent took personal responsibility for his conduct. Dr. Buck did not recall reviewing a binder containing recommendation letters and affidavits regarding respondent from various state employees who have known him since 1980.

Dr. Buck testified under cross-examination that she made several errors in scoring respondent's actuarial results and that, according to Dr. Hanson, some of the risk factors upon which she relied could not be used to predict if a person will sexually reoffend. Dr. Buck acknowledged that, according to a 2001 brief by the APA submitted in another case, substance abuse and personality disorders usually have little explanatory connection to an offender's sexual behavior. Moreover, according to Dr. Hanson, offenders who denied their offenses are at no higher risk to recidivate than are other sexual offenders.

Dr. Buck further testified that respondent was assigned a primary therapist when he was placed in a DHS treatment and detention facility in 2000. During that time, approximately 14 master treatment plans were prepared by respondent's primary therapist and other mental health staff. Dr. Buck acknowledged that 12 of those treatment plans did not diagnose respondent with narcissistic personality disorder, although they did indicate narcissistic features, and that 11 of those plans did not diagnose respondent with cannabis abuse. Dr. Buck also acknowledged that none of the 15 evaluations conducted while respondent was incarcerated diagnosed him with narcissistic personality disorder or cannabis abuse, but testified that those evaluations did not diagnose cannabis abuse because they were not "substance abuse focused."

Dr. Buck gave specific testimony on cross-examination regarding respondent's volitional control. Dr. Buck testified that professionals in her field do not measure volitional control as "high, low, up, [or] down," and explained that she was not aware of any way of measuring volitional capacity. Rather, according to Dr. Buck, respondent's mental disorders impact his emotional and volitional control by warping his perceptions and feelings, which allows him to exhibit sexually assaulting behavior. Dr. Buck testified that respondent has volitional control and capacity to do what he wants because he is not mentally ill, and that those without volitional control are mentally ill and include schizophrenics and manic-depressives who are not taking medication and are usually in a psychiatric hospital. Dr. Buck further testified that respondent committed the crimes intentionally and made a volitional choice to execute them, and that "all of [respondent's] behavior over the past well documented 26 years screams that he has volitional control, volitional capacity."

Dr. Barry Leavitt is a clinical psychologist who specializes in sexually-violent-person evaluations. Because respondent refused to be clinically interviewed, Dr. Leavitt conducted his evaluation by reviewing respondent's master file. According to Leavitt, an examination based solely on a review of available records is an acceptable method of conducting a sexually-violent-person evaluation.

Dr. Leavitt testified that, in his expert opinion, respondent suffers from: (1) paraphilia nos; (2) antisocial personality disorder; (3) narcissistic personality disorder; and (4) cannabis abuse within a controlled environment. Dr. Leavitt explained that paraphilia was the primary predisposing condition that compelled respondent to commit sexually violent acts and that respondent's other disorders act as disinhibiting influences that make it easier for him to exhibit sexually violent behavior. Dr. Leavitt further testified that respondent's paraphilia is a congenital or acquired disorder that affects his volitional or emotional control and predisposes him to commit future acts of sexual violence. Dr. Leavitt explained that respondent's recurrent sexual behaviors were not simply impulse driven but, rather, highly planned and consistent with someone who is compelled to engage in sexually deviant behavior. Moreover, paraphilia cannot be cured but it can be controlled through treatment. Dr. Leavitt opined that, in his expert opinion, there is a substantial probability that respondent will commit future acts of sexual violence unless he participates in appropriate treatment.

Dr. Leavitt explained how respondent's "sexual offending" formed his diagnosis of paraphilia. According to Dr. Leavitt, respondent qualified for a diagnosis of paraphilia nos, which requires a recurrent pattern of sexual urges, fantasies or behaviors toward non-consenting persons over a period of at least six months, because he was identified by 16 women as having or attempting to have committed sexually violent offenses against them and approximately half of those cases resulted in convictions. Another criteria for paraphilia nos involves these sexual behaviors leading to maladaptive social and occupational functioning, which was evidenced by respondent's significant period of incarceration. Paraphilia also requires that the sexual behavior have been committed over this length of period of time, which in this case was satisfied by respondent's sexual behavior toward non-consenting females recurring over a 10-month period.

Dr. Leavitt used actuarial instruments to conduct a risk assessment and measure respondent's likelihood of reoffending. Respondent fell into the "high risk" category under both the Static 99 and the MnSOST-R actuarial tools. Both instruments are viewed as providing an underestimate of someone's future likelihood of reoffending. Respondent's results from these instruments served to confirm Dr. Leavitt's clinical judgment that it was ...

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