Oral argument — People v. Johnson

People of the State of Illinois v. James Johnson We have Ms. Barbara Coven And we have Mr. Patrick Daly May it please the court, counsel I represent the defendant, James Johnson In his appeal of the March 29, 2007 order Finding him subject to inpatient treatment Or involuntary commitment We have several points we want to raise on this The first, because of the Supreme Court's ruling in Harrison I wanted to bring to the court's attention That this court does have jurisdiction to hear this appeal Because it is a post-NGRI determination It's not an appeal of the acquittal itself And state's counsel has no objection That the standard of review is de novo In this case, Mr. Johnson's NGRI acquittee For my count of burglary and retail theft From taking, among other things, a Playboy pendant From the treasure chest kiosk at the St. Clair County Mall So interesting facts there But anyway, after he was found NGRI Under Illinois Law 730 ILCS 5-5-2-4A There has to be a commitment hearing And basically, the proceedings post-acquittal Under the Addington and U.S. Supreme Court cases A commitment for any purpose, even a post-acquittal NGRI The person's entitled to due process protections And Section 5-5-2-4A I'll just say 2-4A from now on It's very clear, it says the court shall hold a hearing As provided under the Mental Health and Developmental Disabilities Code To determine if the individual is in need of mental health services On an inpatient basis, an outpatient basis Or the person's not in need of mental health services Can't you have a stipulated hearing? Yeah, basically all the evidence was stipulated to So isn't that a hearing? Well, I would say it's basically a waiver of the hearing Because it's all the evidence was stipulated to If the courts don't consider that a waiver of the hearing The Mental Health Code and Section 2-4 Don't allow the waiver of all the evidence Or all the confrontation through stipulated evidence The Governor's Commission, when they created this section Intended to have a separate hearing with evidence presented With the right to confrontation There's clearly a difference between a waiver Where you say there has to be no evidence or no stipulation And a stipulation to evidence that would otherwise be presented Right, I'm new to this area of law, to be honest So then if you look at the code The Mental Health Code is very clear on what can be waived It's strict compliance because of the liberty interest Section 5-2-4 says the Mental Health Code prevails Unless there is a direct conflict And there's a case on Carlson Where the 5th District ruled on that issue And that was a person's presence at the courtroom And the Mental Health Code, as you well know Is very strict on what can be waived Or what rules can be followed Because there is no common law right to bend It's only a statutory right So those are the main arguments that we argue That you can't stipulate to all the evidence Because the Mental Health Code does not allow it It allows a waiver of a person's right to be present Other issues that could be waived You keep using the two terms interchangeably though And as Judge Wexton pointed out There is certainly a distinction between the two Well, a stipulation of all the evidence Is a waiver of a right to confront the witness So if the Mental Health Code intended For a patient to have that right to waive The right to confront a witness It would state so in the Mental Health Code There's nothing in the Code that says that stipulation is allowed We agree with that There's nothing in the statute that says stipulations are allowed Right And I think part of it is the judge's parentis parenti role To make sure that the process is set through That the person is in the best setting For their treatment and welfare And even if this court decides That stipulation of all the evidence is allowed In this case He wasn't admonished of what rights he was waiving There was no verbal You know, a waiver has to be a voluntary And known relinquishment of a right And the waiver cannot be presumed And to the suit Basically courts cannot assume the elements of waiver Here there was nothing on the record That he knew that he was waiving his right To confront the witness To present testimony You know, if you look at analogies In a criminal case A stipulation of all the evidence Is allowed Without a waiver by the defendant Only if the defense counsel is preserving the defense Here there was no defense preserved to the commitment He was committed Also, I think what's part of this is Would he allow or read to the commitment If he knew it was for a period of 12, 13 years to 2020 I mean, this is a long time commitment There was nothing admonishing to him That he could be committed to 2020 You know, the state will argue Well, he was not prejudiced Because the fact was he was established mentally ill But there's a key difference Between the initial commitment after an NGRI hearing And subsequent The first one under 24A It's the state has the burden By clearly convincing evidence That the person is either dangerous Or meets the commitment standards Under the mental health code After that, the burden During this period, 12 years The burden switches to the defendant To prove that he's no longer dangerous That's a higher, you know That's hard for a person committed The doctor saying he's not ready to be released That's a higher standard of burden So the burden switches after this commitment hearing So the defendant has the right to petition After this initial commitment hearing But then the burden switches to them So I think the key thing in this case Was that in the mental health code There's no provision for the stipulation Of all the evidence I understand the notion of judicial economy But there's also an issue Of the person's liberty interest This is the person's, you know Considered not guilty And also to avoid the pro fomo You know, entry of these commitment orders I think some guidance needs to be given To both public defenders and state's attorneys That this is supposed to be a separate proceeding About the person's current state of mind And whether they are entitled to a commitment And with regard There's clear law with regard to the commitment That with representation The Governor's Commission When they stated that a person's entitled Counsel was very clear that They wanted vigorous and expert assistance Of counsel at these post Because, and I like this language The quitting made me find that He's definitely stigmatized Labeled both mad and bad And thus easily ignored or forgotten Without vigorous and expert assistance of counsel So I think in these cases Where it's usually the public defenders Representing the person after the acquittal I think there needs to be guidance That the code and the statute Colluding states there shall be a separate hearing And if there is a stipulation of evidence At least the person If you're waiving your right to confront the witness Should have There should be something on the record That the person understands What rights he's waiving and so on You know, there is criminal case law That allows stipulation of evidence But that's only if it's some of the evidence Without an expressed waiver by the defendant And this is in the criminal setting Where they also have the right to confront witness But in those cases If the defense preserves some defense Then it's allowed Or if it's only part of the case And not the whole entire case And one other point There's one case, Mark W. Where this court reversed on the stipulation It was a stipulation of evidence In an involuntary medication case And in that case The defense counsel It was reversed because the stipulation was vague In this case, the stipulation entered Doesn't even qualify Under Illinois law as a valid stipulation Because they actually even did that Under the wrong section of 5- They said he was committed under 5-2-4-B When he was actually committed under 4-4-A I mean, that's a technical point But it was so vague That they put it under the wrong section And in Mark W. It was overturned Because the stipulation was vague Here, the stipulation is not only vague It was under the wrong section of the code Any questions? I think we have the opportunity For rebuttal with the government Mr. Daly Good morning Good morning Counsel's done a very nice job In stating the issues I'm going to give my own state of the art here If I can get the mic Easy to follow I think that there's a general agreement As I listen to the argument I read the reply brief And we look at the record of this case There was a hearing We can at least agree in a technical sense There was a hearing And there was evidence presented to the court The court considered the evidence And made a judgment In accordance with What the statute required the judge to make With regards to whether The defendant should receive An inpatient outpatient Or no And he's there the whole time There was the defendant I mean, yes Based on my concerns I noted he did not raise an objection To the procedure Which is, you know Possibly relevant But I'll get to that in a moment I think what we have here Is it kind of comes down to this While there was a hearing The product of the hearing Which, in the real one Contested issue in this case Was the theme The state had one take on it The defense had another take on it There was back and forth It eventually went with the defenses It then changed its mind And had a motion to reconsider One of the states But with regards to The judicial decision, if you will With regards to The type of treatment That the defendant should receive But there wasn't any In-court testimony With regards to cross-examination Or really any argument in that regard So I perceive the defendant's argument Is that while There was a hearing in a technical sense It was a hearing That was tantamount to a guilty plea Because the whole evidence, if you will That resulted in the judge's finding Was not contested It was contained in the report Given to the court My position is going to be two-fold Number one, I think that the defendant's argument Sort of conflates the ideas That have been expressed by this court And Michael H. and Donald S. With regards to waiving a hearing altogether Where the court is presented With a fine that was paid in complaint Without the court actually involved In making a decision With regards to the appropriate treatment This is clearly different When you stipulate Mr. Goldman fought the good fight On the waiver argument Trust me, I fully supported that Well, that's right But I think you should raise An excellent point that I want to discuss With regards to the guilty plea And I think we're at this point Mainly because of me In the way I phrase the argument And I say it by necessity Because there's not really any case law In this type of proceeding Which is civil yet due process criminal In the sense that there's An involuntary commitment He's going to be, you know In an institution involuntarily For what could be an extended length of time So the criminal cases Appear to be probably the closest analogy Which is why I cite in those three cases In the brief The triumvirate of stipulation cases Which resulted in the most recent one Which I think was Plandemon But doesn't that If you're going to use the criminal case Doesn't that support The defendant's claim here That the court was required to admonish the defendant Obtain a personal waiver And he understood what he was waiving That's a question this court has to answer And let me try Since I don't get a Japanese reply This is giving me my one chance to take a stab In these cases And I present these cases to the court More broadly in the sense of establishing What counsel can do In their representative capacity With regards to making decisions On behalf of the client Whether or not the defendant Has to be informed of this Or is it a matter of trial strategy Is it a matter of What does the defendant need to be admonishing And you've seen I think the progression of cases Is sort of delineated between Stipulations that are really tantamount to a guilty Or stipulations where an evidence is preserved Excuse me, an issue is preserved for appeal So in the Condetta case The Supreme Court says Well, it can't really be deemed a reasonable strategy Where the entire case is by stipulation No defense is preserved Or the stipulation explicitly states That the evidence is sufficiently convicted We're looking at the former consideration here And as I perceive the defendant's argument This is really what we have here The whole sum of the case comes in The problem we have is this Well, there's two problems I'll deal with the bigger one here While this is from a due process standpoint Analogous to a criminal case It's not a criminal case Okay, and this relates to I think the second argument is The defendant says The state's argument That the fact that they perceive at this point Because the defense perceived That the real issue here Was a theme date Is not really preserving an argument Because theme dates like a sentencing post-trial Would be like going to stipulate bench trial With the purpose of preserving a sentencing issue Which is an interesting argument But I think that there is a functional distinction here A criminal prosecution is I don't want to sound overly Pollyanna-ish here As I say this, but It is an adversarial proceeding It's the state versus an individual Where the state is seeking to punish someone For violation of the criminal code And to imprison that person Is a punitive measure We can call it a punitive measure But really it's punishing We all know it's punishing We see that in sentencing hearings As one of the factors in aggravation Determines things of that nature Proceedings here Where the defendant has been acquitted Is no longer really the state Versus the defendant is in the line I'm not saying that the state is the power But the objective here is a lot different The objective isn't to punish the defendant The objective is to get the defendant To receive the treatment that he is supposed to receive The reason that that's important is this In a guilty plea case Because it's a punitive type of action When a person pleads guilty Or there's a stipulation Which is tantamount to a guilty plea That's essentially a capitulation To the state's adversarial process And that because of the ramifications of that And because of the punishment Attended to that particular capitulation It's not considered appropriate To have a stipulation as a guilty plea Without the admonishments That go along with the guilty plea What we have here The purpose of the statute is this And this is obviously a purpose That was not served In the other cases Michael H. and Daniel S. Is that the court acts as essentially a landmark If you will To consider evidence And to make a determination Of what is the appropriate treatment For the defendant So I don't think it's correct To say that this is a guilty plea Because he's not pleading guilty to anything What's happened is the court has given evidence And I don't think anyone's contested That this is the evidence That the court would consider So in that instance The court then makes an independent review of that And then makes a decision Based upon that Whether or not If this recommended treatment is appropriate For this particular defendant Certainly It's the likely And probably the most probable result Given the fact that this is the evidence That the court is considering But again, it's not being presented Because anyone wants to punish the defendant This is what a seasoned Informed expert Has indicated is appropriate Based upon scientific principles So while I talk about criminal cases In the sense of They provide a framework for stipulations I'm not going to take the next step And say that they provide a framework For what a court has to do Or that you can characterize A presentation of evidence By way of stipulations As equal to a guilty plea Because you're importing one concept The applicant, if you will Into the proverbial orange I don't think it works So this is my argument I appreciate your argument It's still a loss of freedom It is certainly still a loss of freedom And I understand it But I understand it's still a loss of freedom In the instance where, let's say A defendant loses a motion to suppress evidence And then they go, and we've seen this all the time You go to a stipulated bench trial The state says, I'm going to present this, this and that The defendant says, I stipulated that So the state's going to present it The court finds the defendant guilty The stipulation encompasses every element of defense There's nothing wrong with it But there is an issue being preserved Now, my point is that The preservation of the issue Ties into the criminal punitive aspect of those proceedings If you can kind of follow what I'm saying I think that the paramount goal here Is not necessarily what the defendant agrees or doesn't agree to The paramount goal is that the court Consider the evidence And make that determination About what is appropriate for the defendant And that's exactly what happened in this instance Now, if I want to go ahead and import that That concept of preservation I still think that the fact that the parties decided to In the defense make a strategic decision That there's not really any way That we're going to contest the very same evidence That we just used, not to law But to get the defendant acquitted As being insane That we're going to challenge that As somehow inappropriate For him to be, you know, receive inpatient treatment I don't think that there was that The finding that would fit the statutory criteria Was that he needed inpatient treatment So, since I've kind of come to this point I made the argument that There is no sentence involved here I don't think that the analogy the defendant presents That the theme date is akin to the sentence post-trial And that you're preserving something I think that the theme date is part and parcel Of this whole statutory construct of sections 2-4a and 2-4b Which establish the parameter of the defendant's Initial commitment to the mental health facility So, I do think that the theme date is Far from being a separate consideration As irrelevant Is part of the whole process In which I think the defense could conceive Or perceive as being important to And functionally indistinguishable from anything else With regards to preserving an issue for appeal And there was, as seen from the record A significant discussion and argument And the court itself Vastly in between two positions Trying to come to the correct determination Of what the appropriate theme date was They were pretty extreme positions They were pretty extreme positions 12 versus 2 Yeah, yeah If he asked me to tell you the exact arguments I don't remember offhand But there was a broad difference And of course it went from the shorter one Now to the longer one Right So, I don't think I think that if we're going to look In terms of, say, trial strategy And I really can't emphasize enough I'll say it for the one millionth time It's not a criminal proceeding It's not a It's not an adversarial proceeding That the state is looking to do something To someone because of what they did This is So in that case In that instance, it's not a sentence It is critical It's important Everyone can understand and perceive Including defense counsel That We can put this witness We can put this witness on Go through what's in your court But the witness is certainly going to testify Say But really what's going on Is we want to make sure That this defendant Isn't going to be held Longer than he should be Under the appropriate theme date And that's just Part of the Comprehensive commitment process That occurs Post NGRI So But at the very least Shouldn't the court admonish The defendant What he's giving up So it's a knowing And voluntary relinquishment Of his right to due process But there's no requirement In criminal cases To go back to this That the court admonish the defendant Of anything with regards to A stipulation That much has been established By the Supreme Court case So if this court Ultimately deems that That's appropriate That's what this court's here for And that's why we're here And like I said All I have to go by Because of the analog Are the criminalities But because there's You know A certainly A confluence of due process Rights here With regards to To What happens to someone If they're going to be detained For what could be An extended period of time I think it's very telling That the Supreme Court In a criminal context Doesn't require A court order in pain Except In the instance Where it's a guilty plea In that case The agency acknowledges 402 But that's not what we have here And that's why I'm hammering home The guilty plea aspect of it Because this is not a guilty plea I don't know if you can make that You can parse that distinction In this type of proceeding Is there anything in the record That Mr. Johnson was informed Of the consequences Of his stipulation? Only at the NGRI But the trial Not in this instance And clearly There's only one doctor Who's going to testify Or give evidence I don't know Evidently That was the conclusion Reached by all the statements So it's sort of New ground And hopefully I've stated my position Enough in the recording So you can listen to it Again later Because I don't have it Reduced in writing But it's It's obviously My position Based upon I think The distinction Between the criminal facility That's a different Consideration altogether And I don't think An admonishment Is required And I do think It's certainly The power of Appointing counsel In a representative capacity To make a strategic decision To go forward And focus on The theme Because it was really The one contestable Important issue It's either strategic Or ineffective Well If I lose any Other arguments It probably dovetails With the effectiveness Of the counsel But is it really? I mean There's really no Law on this I do want to One point of this There was a case In Ray Mardelli It doesn't deal With stipulations Per se What happened This is an involuntary Demonstration Of psychotropic Indications In that case There was a Stipulation It was a verbal Stipulation It was Found by this court The court Prefaced its comments By saying that Proceedings by stipulations Are fine They had no problem With that concept It found that The stipulation In this case Was not sufficient Because it came In the form of A verbal stipulation That wasn't specific To I guess You would say The necessity The specific medical Necessity For the administration Of the drugs Notably This court noted That there was No report By the physician To be part Of the stipulation Which of course Is not the instances We have here Now I don't know if I I don't go To the next step And say Mark W. Is the established Law that dictates The result here But I do think It's interesting To note that It does It is significant In its recognition Of one The validity And perhaps Sometimes the utility Of stipulations And number two The type of stipulation That would probably Be deemed Approval I think that About covers Everything I have to say Does the court Have any Any further questions I don't think so Thank you Thank you very much Ms. Goldman Do you have a rebuttal So of course You know The stipulation Cannot technically And if you think Of a guilty plea It's still The same result Of a Of loss Of his liberty And if you think Of a guilty plea It's still The same result And if you think About it This is even more Significant Because it's A loss Of the liberty Of a person Who's technically Acquitted Of the crime So it's a loss Of the liberty Of a not guilty Person You know The Stipulation Addresses The issue Of The person's Right to Cross-examine The witness And there's Clear law That a person Facing commitment Has the right To cross-examine The witnesses Against them And that's why Even though Technically The person's Not Pleading guilty They're still Having the same Results of Losing Losing Their liberty Also The code Envisions And also The And the Legislative History Envisions A strenuous Representation Of The These Parties And I Understand She did A good job In obtaining The NGRI But you Can't skip Over the Issue of Whether the Person's Going to Lose their Liberty Through a Commitment And the Theme date Calculation Is a Separate Determination From whether The person Is either Going to Be Committed Or have An Outpatient Order Or have No Mental Health Services So at Least if The person Needed Mental Health Services There could Be an Argument Well He Can do Outpatient Services And the Issue Why These Commitment Hearings Are Important Why There Needs To Be Strenuous Representation Is that You only Can Commit Based on The Current Person At The Person's Current State Of Mind So like I believe In this Case The Ledge Crime Occurred Two Years Before This NGRI Hearing I think The Issue The Time The Current Issue With That So even Though Technically He's Not Being Found Guilty Of Anything These Cases Where A