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In re Detention of Lieberman

Court of Appeals of Illinois, First District, Fourth Division

June 1, 2017

Brad Lieberman, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County. No. 00 CR 80001 Honorable Dennis J. Porter, Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion.


          McBRIDE JUSTICE.

         ¶ 1 Respondent Brad Lieberman appeals from the trial court's order denying his petition for discharge and granting the State's motion for a finding that no probable cause existed to discharge him from commitment pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2012)). On appeal, respondent argues that the Cook County circuit court erred in ruling that no probable cause existed that he should be discharged because his current diagnosis of "Sexual Sadism" differed from the diagnosis for which he was originally adjudicated a sexually violent person under the Act, namely "Paraphilia, Not otherwise specified" (PNOS). He contends that the State cannot "unilaterally change the mental disorder that forms the basis of an individual's commitment, " and that such a change in diagnosis violates his due process rights and is barred by res judicata. Respondent also contends that the trial court erred in failing to impose sanctions against the State for its "untimely disclosure" of respondent's annual reevaluation report.

         ¶ 2 As we have noted in a previous appeal, respondent's criminal history and subsequent commitment under the Act are well documented. The supreme court summarized respondent's history in the consolidated decision, In re Detention of Stanbridge, 2012 IL 112337, ¶¶ 19-22, as follows:

"In 1980, Lieberman was convicted of numerous counts of rape and sentenced to multiple concurrent terms of imprisonment. Shortly before his scheduled release date from prison in 2000, the State sought to have Lieberman involuntarily committed as a sexually violent person pursuant to the Act (725 ILCS 207/1 et seq. (West 2000)).
In February 2006, a jury found Lieberman to be a sexually violent person within the meaning of the Act. The mental disorders that formed the basis for Lieberman's commitment included paraphilia, not otherwise specified, sexually attracted to nonconsenting persons (paraphilia NOS-nonconsent). The State's experts described this type of disorder as one premised on intense recurring rape behaviors with nonconsenting adults that cause distress or impair one's ability to function in society. Thereafter, in April 2006, the trial court ordered Lieberman committed to the Department for institutional care and treatment in a secure facility until further order of the court.
Lieberman appealed, arguing, inter alia, that the State failed to prove that he suffers from a serious lack of volitional control resulting from a current mental disorder, and failed to prove beyond a reasonable doubt that he suffers from a mental disorder or that he presents any risk to reoffend. In re Detention of Lieberman, 379 Ill.App.3d 585, 597-98 (2007). Specifically, he maintained that the State's expert's opinions and diagnoses did not meet the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM). Id. at 602. His commitment was affirmed on direct appeal. Id. at 611."

         ¶ 3 Following his initial commitment and the supreme court's affirmance of that commitment, respondent has been periodically reviewed under section 55(a) of the Act, which requires a report six months after the initial commitment and a yearly report thereafter "for the purpose of determining whether *** the person has made sufficient progress in treatment to be conditionally released." 725 ILCS 207/55(a) (West 2012). Following respondent's challenges to these reports, this court has repeatedly affirmed the trial court's findings that no probable cause existed to conclude that he was no longer a sexually violent person under the Act. See In re Detention of Lieberman, 2015 IL App (1st) 141360-U; In re Detention of Lieberman, 1-09-2162 (2011) (unpublished order under Supreme Court Rule 23).

         ¶ 4 The proceedings at issue in this appeal began on March 19, 2014, when the State filed the 2013 reexamination report and a motion for a finding of no probable cause. Respondent objected to the filing, arguing that the Act required the State to file the report within 12 months of the prior reexamination. The trial court, however, overruled the objection and found the filing timely because it immediately followed the same-day resolution of the same motions related to the 2011 and 2012 reexaminations.

         ¶ 5 The 2013 reexamination report, dated October 18, 2013, was completed by Dr. Kimberly Weitl. It indicated that Dr. Weitl reviewed respondent's previous evaluations, court records, disciplinary records, and the Illinois Department of Human Services (DHS) treatment plan. Dr. Weitl attempted to interview respondent for the reexamination, but respondent refused.

         ¶ 6 Dr. Weitl reviewed respondent's criminal history and noted that respondent had been accused of raping 17 women in Cook and Lake Counties over a 10-month period in 1979 and 1980, including during a period when he was on bond for earlier offenses. She observed that respondent's crimes shared common features-specifically, he

"frequently used weapons during the commission of his sexual assaults, heightening the fear in the victims. Many times he forced his way into the women's homes or raped them as they were walking in the neighborhood. He was frequently noted to have threatened to kill the victims if they reported the assaults. He typically grabbed the women around the throat, while forcing them to undress. All of the women were strangers."

         ¶ 7 Dr. Weitl also noted that respondent had a history of disciplinary issues in prison, including "engaging in sexual intercourse with a female visitor in the visiting room restroom, " making phone contact with one of the women who had accused him of sexually assaulting her, and continuing to correspond with a woman after he was ordered not to do so.

         ¶ 8 Based on the above, Dr. Weitl found that respondent met the "DSM-5/DSM-IV/TR diagnoses" of sexual sadism and antisocial personality disorder. Dr. Weitl explained that sexual sadism "is a paraphilic disorder that involves inflicting physical or psychological pain and suffering on a non-consenting person during a sexual act." Dr. Weitl noted that respondent was "formerly diagnosed with Paraphilia Not Otherwise Specified, Non-Consent, but using the newly released fifth edition of the DSM it is clear that he meets the diagnosis for Sexual Sadism." She indicated that the new DSM-5 "explicitly note[s] that this diagnosis is intended to apply to both individuals who freely admit to having such sexual interests [involving the infliction of physical or psychological pain and suffering on a non-consenting person during a sexual act] and to those who deny such interest despite evidence to the contrary." She further stated that sexual sadism was "considered a mental disorder under the act."

         ¶ 9 As to antisocial personality disorder, Dr. Weitl stated that the

"essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others since the age of 15. Mr. Lieberman has demonstrated a failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest. He has a history of physical violence on others, indicating he suffers from irritability and aggressiveness. He has demonstrated a reckless disregard for safety of himself and others, indicated by his criminal history of physical and sexual assault and stealing. He has shown a lack of remorse, indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. *** Although this disorder, by itself, would not ordinarily qualify as a mental disorder under the Act, it has a synergistic effect in combination with his other disorders, and increases Mr. Lieberman's predisposition to acts of sexual violence. In this case, antisocial personality disorder is a mental disorder under the Act." (emphasis is original).

         ¶ 10 Dr. Weitl then evaluated the risk that respondent would reoffend, using three actuarial instruments-the Static-99, the revised Static-99, and the Minnesota Sex Offender Screening Tool-Revised. Respondent scored in the "high risk" or "highest risk" categories for each instrument. Dr. Weitl found additional factors increased respondent's risk of reoffending, including his antisocial lifestyle, lack of treatment motivation, and his belief that he did not pose a risk to reoffend. Dr. Weitl also considered various protective factors that could lower the risk of reoffense, including sex offender treatment or a medical condition, but found that they did not apply to respondent because he had not participated in treatment and had no identified medical condition that would decrease his risk of sexually reoffending.

         ¶ 11 In the report, Dr. Weitl concluded that respondent "suffers from one or more mental disorders, which are congenital or acquired conditions, affecting his emotional or volitional capacity and predisposing him to engage in acts of sexual violence, " and that "[a]s a result of [respondent's] mental disorder(s), it is substantially probable that (he) will engage in acts of sexual violence." Dr. Weitl stated that respondent's "condition has not changed since his last examination" and that he had "not made sufficient progress in treatment to be conditionally released[.]" She recommended that he "should continue to be found a Sexually Violent Person" under the Act and that he "should remain committed to the Illinois Department of Human Services-Treatment and Detention Facility for further secure care and sexual offense specific treatment."

         ¶ 12 On July 9, 2014, respondent filed a petition for discharge. Respondent maintained that he was entitled to discharge because he was no longer diagnosed with PNOS, the mental disorder on which his commitment was based, and because the sexual sadism diagnosis was "improper and unreliable." Respondent also argued that commitment based on sexual sadism violated his due process rights because that mental disorder was not found by a jury beyond a reasonable doubt. Respondent further contended that the State's motion for a finding of no probable cause and Dr. Weitl's 2013 report "should be stricken as untimely pursuant to 725 ILCS 5/2-619(5)."

         ¶ 13 The State responded, asserting that it was respondent's burden to show that he was no longer sexually violent and his criticisms of his new diagnosis did not meet that burden. The State also contended that respondent's due process rights were not violated and that due process does not require a "new trial or discharge every time an expert opines that a respondent remains sexually violent under a different diagnosis that perhaps did not exist at the time of trial, that was not wholly supported by the version of DSM in effect at that time, or some combination thereof." The State also pointed out that section 2-619 applied only to actions and pleadings and clarified that it had received the report in October 2013 while the 2011 and 2012 reports and accompanying motions were still pending in the trial court and, "[r]ather than queue up yet another report and motion, the People determined that the most efficient way to proceed was to first resolve the 2011 and 2012 motions before proceeding with the 2013 report."

         ¶ 14 On November 14, 2014, the trial court held a hearing on the State's motion for a finding of no probable cause and respondent's petition for discharge. After hearing arguments from the parties, the trial court expressed some concern regarding the significance of the new diagnosis and ordered discovery and another hearing on that issue.

         ¶ 15 Respondent deposed Dr. Weitl on April 16, 2015. During the deposition, Dr. Weitl testified that she is a licensed clinical psychologist and that she evaluated respondent in 2010, 2011, 2012, and 2013. Dr. Weitl visited the treatment and detention facility on October 5, 2013, where she requested to speak with respondent, and he refused. Dr. Weitl completed the report on October 18, 2013. She diagnosed respondent with sexual sadism and antisocial personality disorder and recommended that he continue to be confined as a sexually violent person. Dr. Weitl acknowledged that she had previously diagnosed respondent with PNOS under the DSM IV-TR. She testified that nothing in respondent's condition or behavior had changed since the most recent prior reexamination and, aside from the version of ...

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