People v. Webber ( 2021 )

2021 IL App (2d) 191090-UNo. 2-19-1090
Order filed June 9, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is precedent except
in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellant, )
)
v. ) No. 10-CF-2643
)
MARCI M. WEBBER, ) Honorable
) George Bakalis,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice Bridges and Justice Hudson concurred in the judgment.
ORDER
¶1 Held: The trial court’s finding that defendant was not a danger to herself was against the
manifest weight of the evidence and therefore its grant of conditional release was
error.
¶2 The State appeals the trial court’s granting of defendant’s (Marci M. Webber) petition for
discharge or conditional release. The State contends that defendant still suffers from delusions and
is a danger to herself and others such that she would benefit from inpatient care. The trial court
relied on Dr. Lesley Kane’s testimony as support for its findings that defendant should be granted
2021 IL App (2d) 191090-Uconditional release. Based on our review of that testimony, the trial court’s findings are not
supported by the manifest weight of the evidence. For the reasons that follow, we reverse.
¶3 I. BACKGROUND
¶4 On November 3, 2010, defendant murdered her four-year old daughter, Magdalene. She
thought that Satan was going to kidnap Magdalene for the purpose of sexual gratification.
Defendant cut Magdalene’s neck in her mother’s bathroom and inscribed words on the walls in
blood. On November 10, 2010, defendant was indicted on five counts of first-degree murder.
¶5 On June 7, 2012, defendant was found not guilty by reason of insanity (NGRI). She was
remanded to the custody of the Illinois Department of Human Services (DHS) pursuant to section
5-2-4 of the Uniform Code of Corrections (730 ILCS 5/5-2-4 (West 2012)) (Code) for an
evaluation as to whether she was in need of mental health services. On July 13, 2012, the trial court
found defendant was in need of mental health services pursuant to section 5-2-4(a-1)(B) of the
Code. 730 ILCS 5/5-2-4(a-1)(B) (West 2012). Defendant was initially receiving treatment at Elgin
Mental Health Center but was moved to Chicago-Read to continue treatment.
¶6 On August 22, 2017, after five years of treatment, defendant filed a motion for discharge
or conditional release and asked the court to consider her petition under the auspices of section 5-
2-4(g) of the Code. 730 ILCS 5/5-2-4(g) (West 2016). After a hearing on November 13, 2017, the
trial court denied defendant’s petition as it was unconvinced she was ready for discharge. The trial
court said that “[w]hat is appropriate is for DHS to do what should have been done some time ago
*** establish a plan for [defendant’s] eventual transition into society.” Two days after the trial
court’s denial of defendant’s petition, she attempted to kill herself by ingesting 30 Fioricet pills.
Thereafter, on November 27, 2017, defendant was transferred back to Elgin Mental Health Center.
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2021 IL App (2d) 191090-UOn August 1, 2019, this court affirmed the trial court’s denial of defendant’s petition. See People
v. Webber, 2019 IL App (2d) 170998-U.
¶7 During the pendency of that appeal, defendant filed another petition for discharge, or in the
alternative, conditional release. She subsequently filed two amended petitions for conditional
release or discharge in July 2018. Defendant’s second amended petition requested the trial court
to consider evidence regarding her treatment plan, and whether she met the criteria for inpatient
treatment pursuant to section 5-2-4 of the Code. 720 ILCS 5/5-2-4 (West 2018). In response to
defendant’s amended petition, the trial court ordered Dr. Lesley Kane to conduct an independent
evaluation of defendant prior to a hearing on her second amended petition for conditional release.
¶8 On May 8, 2019, the trial court began a bench hearing on defendant’s second petition for
conditional release or discharge. Defendant called three expert witnesses to testify. The first was
Dr. Toby Watson, a clinical psychologist and expert in forensic outcome studies as it relates to
severe mental illness. Watson was hired to examine defendant on three different occasions; August
17, 2015, July 5, 2017, and March 21, 2018. 1 Watson’s testimony was based on reports he created
following examination of defendant on those dates.
¶9 Watson opined that defendant does not suffer from a mental illness and is not a danger to
herself or others. In 2015, he diagnosed defendant with post-traumatic stress disorder and alcohol
dependence by history but stated that she was not dependent on alcohol at the time of his testimony
1
Dr. Watson’s testimony concerning the August 17, 2015, and July 5, 2017, examinations
of defendant was largely duplicative of testimony given at the November 13, 2017, hearing on
defendant’s August 22, 2017, petition for conditional release or discharge. People v. Webber, 2019
IL App (2d) 170998-U, ¶ 7, 8.
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2021 IL App (2d) 191090-Udue to her having completed the mental illness substance abuse program during inpatient
treatment. Watson did not believe defendant would use alcohol again if discharged. Regarding
defendant’s post-traumatic stress disorder, Watson testified that defendant’s trauma stemmed from
“verbal and physical abuse from her parents, *** from being abused from her husbands[,] ***
from custody battles[,] *** from the fact that she killed her daughter and doesn’t believe that she
was mentally ill, that it was actually *** withdrawal from medication ***.” Watson further opined
that defendant’s post-traumatic stress disorder could have been caused from being involuntarily
medicated while in inpatient care. Watson reiterated that these traumas did not make defendant
mentally ill or a danger to herself or others. He denied the assertion that defendant was under the
influence of alcohol when she killed her daughter. He believed that she suffers from underlying
depression. Watson acknowledged defendant’s November 2017 suicide attempt following the
denial of her prior petition for discharge but described it as, while serious, a singular event. He
believed that defendant should be transitioned to an outpatient mental health facility and
acknowledged that she would need to check in daily due to the stress of finding an apartment and
a job.
¶ 10 Defendant next called Dr. Gail Tasch, a board-certified psychiatrist, to testify. Tasch was
referred to defendant by Dr. Watson and met with her on one occasion at Elgin Mental Health
Center for the purpose of preparing a report and opinion as to whether defendant qualified for
release. Tasch testified that she had also spoken to defendant numerous times by phone. Based on
her experience and interactions with defendant, Tasch opined that defendant does not suffer from
a major mental illness, nor does she have symptoms of a major mental illness. She further opined
that defendant “does not have any suicidal thoughts[,] *** no thoughts of wanting to hurt herself
or anybody else, no suicide or homicidal thoughts.” Based on her review of defendant’s record of
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2021 IL App (2d) 191090-Uinpatient treatment and Dr. Watson’s report, she did not believe defendant to be a danger to herself
or others.
¶ 11 Tasch testified that she believed defendant’s alcohol use to be a side effect of psychotropic
medications. In her opinion, if defendant stayed away from those medications, she would not pose
a danger. She did not agree with Dr. Watson’s diagnosis of defendant’s alcohol use disorder. Tasch
believed that defendant understands the nature and character of her action but did not believe
defendant needed mental health treatment.
¶ 12 Defendant then called psychologist Dr. Dathan Paterno to testify. Paterno conducted an in-
person interview and psychological testing with defendant in October 2018. Additionally, Paterno
stated that he had “probably 20 phone conversations” with defendant between October 2018 and
the time of his testimony. He did not believe that defendant would use alcohol outside of a
controlled environment “frequently or to a troublesome degree” as long as “she stayed off
psychiatric medications, she would not need [alcohol] to counteract that.” Although defendant will
need psychotherapy for years, he opined that defendant does not suffer from a mental illness, nor
is she a danger to herself or others.
¶ 13 Defendant then testified on her own behalf. She described having been physically attacked
by other patients at Elgin Medical Health Center, as well as being called “baby killer” by patients
during her time there. She recalled her suicide attempt on November 15, 2017, at Chicago Read
following the denial of her discharge petition. She blamed the suicide attempt on “a lot of
circumstances *** including *** a combination of medications, three different medications.”
Additionally, she “was very vulnerable.” She had seen a report of her case on television news the
described defendant as “severely mentally ill.” She thought it would be better for her to take her
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2021 IL App (2d) 191090-Uown life and “let her [daughter] sue for wrongful death.” She admitted that the denial of her
discharge petition also played a role in her suicide attempt.
¶ 14 Defendant denied suffering from any mental illness. She described her relationship with
her psychiatrist at Elgin Mental Health Center, Dr. Richard Malis, as nonexistent as he refused to
accept that defendant does not suffer from a mental illness and sought to administer psychotropic
medications to treat defendant. She said that she would not be willing to take any medications
prescribed because she knows “that [she is] not insane *** [and she is] not in need of medication.”
Although she admitted to experiencing paranoid and religious delusions at the time she killed
Magdalene, she testified that she had not experienced any since. She further admitted to past
alcohol abuse, including at the time of her crime, but did not believe she would abuse alcohol to
cope with adversity in the future.
¶ 15 When asked what she would do if released, defendant responded
“Well, I feel that I know myself very well. What I would like to do, because I
understand the world is a little bit different now and I’ve been locked up for some time, I
would like to transition by getting counseling.
I need to be in my own home. I need a place of my own, an apartment, where I
don’t have people telling me what to do that don’t know *** what’s best for me or don’t
care. I’m tired of people. I’m exhausted from people. I just want some peace.
I would like to go to a counselor, a one-to-one, to be able to *** grieve the death
of my daughter that I’ve had to stuff all these years, grieve the death of my father that I
was antagonized over the phone while he was dying, and to deal with my perception of
humanity at this point.”
-6-
2021 IL App (2d) 191090-U¶ 16 Dr. Richard Malis, defendant’s treating psychiatrist at Elgin Mental Health Center, was
called to testify by the State. Malis believed that defendant needed mental health services on an
inpatient basis. He opined that defendant was expected to inflict serious harm upon herself or
others and diagnosed defendant with schizoaffective disorder bipolar type, alcohol use disorder,
and borderline personality traits.
¶ 17 As to his diagnosis of schizoaffective disorder bipolar type, Malis explained that defendant
met this diagnosis through continued delusional ideas and disorganized thinking. Defendant’s
symptoms of this diagnosis started before she killed her daughter and continued throughout her
treatment. Malis described defendant’s delusional beliefs concerning a conspiracy by the church
to harm her daughter. He further described defendant’s fixed false beliefs about being mistreated
by the legal system during her child custody battles with her ex-husband before she killed
Magdalene. Following her crime, defendant continued to demonstrate these delusional beliefs
when she believed one of her pyschologists was part of the mafia and Illuminati, conspiring with
the courts in her custody battles. Her delusional beliefs continued after being committed by
maintaining that she was being tortured deliberately by her treatment providers and hospital staff.
Malis opined that defendant’s demonstration of “flight of ideas and pressured speech” further
evidences this diagnosis.
¶ 18 Malis described the bipolar component of defendant’s diagnosis as depressive episodes
evidenced by depressed mood, at times with sleep disturbance, changes in weight and appetite,
and loss of interest in different activities. Malis recalled defendant had periods of time where she
is crying and tearful and describes being sad. She experiences periods of sleep disturbance where
she tends to not go to sleep until very late in the evening and not get out of bed until noon the
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2021 IL App (2d) 191090-Ufollowing day, often taking naps the following afternoon. Malis stated that defendant had exhibited
chronic increase in appetite and exhibited a lack of interest in most activities.
¶ 19 Malis recommended defendant take psychotropic medications but she has refused. He
testified that the goal of the medications was to reduce symptoms of her delusional beliefs,
disorganized thinking, and mood disorder symptoms. He observed that defendant was taking
psychotropic medications following the murder of her daughter. She exhibited less of the
delusional beliefs and better controlled her mood disorder symptoms when talking these
medications. Additionally, defendant seemed less irritable, had more stable moods, engaged in
treatment, and her reports exhibited less conflict with hospital staff. Malis opined that psychotropic
medication had a positive effect on defendant.
¶ 20 Malis testified that defendant does not have insight into her mental illness. He stated that
defendant believes her delusional ideas and is unable to consider the possibility that they are not
true. Defendant’s refusal to participate in the recommended therapy further exacerbates this
problem. She does not attend group therapy regularly. She does not participate in individual
therapy at all. She has refused to meet with Malis except once every several weeks as a requirement
for the grant of certain hospital privileges. At the time of Malis’s testimony, defendant had not met
with him in about a year, and she was not currently meeting with her psychologist for any sort of
therapy as she was not interested. Malis gave defendant a list of goals each week, including a non-
hostile interaction with her social worker. The week prior to his testimony was the first time
defendant had met that goal.
¶ 21 Malis testified that defendant has a lack of insight into her alcohol abuse disorder. He
recommended treatment to defendant as individuals with this disorder often relapse, as defendant
has in the past. Defendant’s belief that she only drank alcohol in the past to cope with side effects
-8-
2021 IL App (2d) 191090-Ufrom medications would not produce a positive outlook on her chances of maintaining sobriety.
Malis stated that alcohol counteracts the beneficial effects of psychotropic medications and can
destabilize psychiatric issues. Additionally, there is a higher risk of suicide attempts and violence
to others from individuals that abuse alcohol with a history of mental illness.
¶ 22 Malis opined that, if released, defendant is expected to inflict serious harm upon herself or
others. He based this opinion on her index offense, history of driving under the influence of alcohol
with another individual in her car, physical incidents with other patients, and suicide attempts
following the murder of Magdalene and in November 2017 while in DHS custody. Malis stated
that defendant’s November 2017 suicide attempt consisted of her taking 30 Fioricet pills; a lethal
amount of acetaminophen had defendant not thrown up. Malis disagreed with Dr. Watson’s
assessment that the suicide attempt was not the result of a mental illness.
¶ 23 The State next called Dr. Lesley Kane, Chief Psychologist for Du Page Probation and Court
Services, to testify. Kane was appointed by the trial court to conduct an independent evaluation of
defendant. Her evaluation was based on meeting with defendant for five hours and reviewing DHS
treatment records. She diagnosed defendant with borderline personality disorder, other specified
personality disorder with narcissistic traits, rule-out bipolar disorder with psychosis in remission,
major depressive disorder with psychosis in remission, and alcohol use disorder. Regarding the
borderline personality disorder diagnosis, Kane testified that someone with such a disorder may
overreact to perceived slights or disagreements with another person and believe them bad or evil.
She described defendant as having described feelings of being unfairly targeted by others,
including DHS staff, that are beyond what would be considered normal. She opined that the
severity of defendant’s delusions waxed and waned.
-9-
2021 IL App (2d) 191090-U¶ 24 Regarding defendant’s November 2017 suicide attempt, Kane testified that, at the location
of the attempt, defendant had written on the walls about DHS staff targeting, torturing, and treating
her unfairly. Additionally, defendant had written a message to her daughter on the wall to sue DHS
for wrongful death. Kane stated that suicide attempts are consistent with borderline personality
disorder. She expressed concern that “if [defendant] is not in treatment or some form of treatment
being monitored, *** there is the potential *** that she could harm herself.” Kane believed
defendant’s potential for self-harm was greater on conditional release because less monitoring
would occur.
¶ 25 Kane expressed concern about defendant’s alcohol abuse disorder outside of a controlled
environment. She testified that there was reason to still be concerned about an alcohol use relapse
when defendant was no longer in a secured environment, and that alcohol use could exacerbate
symptoms of her mental illness.
¶ 26 Kane testified that her biggest concern for defendant was that she was not recognizing the
role mental illness played in her offending behavior. She opined that psychotropic medications of
the kind defendant had refused to take helped her control her mental illness when they were being
administered to her. She described defendant as more stable on medication and more insightful as
to her mental health condition. Kane worried that, if released, defendant would struggle with the
stresses of finding a place to live, supporting herself financially, and maintaining relationships.
Additionally, she expressed concern that defendant would be unable to cope with, or even
recognize, her symptoms in an outside environment.
¶ 27 It was Kane’s recommendation that defendant continue inpatient treatment and opined that
her symptoms would not improve without treatment. Kane believed defendant’s underlying mental
illness was the core issue preventing her from receiving necessary mental health treatment but
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2021 IL App (2d) 191090-Uacknowledged that defendant may not receive that necessary treatment while in DHS. She did not
think it was possible that defendant would see Dr. Malis for treatment and stated that defendant
has shown more insight into her mental illness when taking medication. Kane testified that
defendant’s insistence that medication is the cause of all her issues makes her unable to address
her problems and recognize the symptoms of her mental illness.
¶ 28 In rebuttal, defendant called Terry Nichols, a former nurse at Elgin Medical Health Center,
to testify that he interacted with defendant while employed there and made notes on defendant’s
chart. He recalled noting a positive interaction with defendant following one of his shifts and made
note of it in the chart. Nichols testified that Dr. Malis believed Nichols must be being manipulated
and was not pleased with the positive note. Nichols testified that his supervisor explained to him
that Dr. Malis wanted to compel medications for defendant through a court order and the positive
notes in her chart would hinder that course of action.
¶ 29 On September 18, 2019, the trial court issued a memorandum opinion that it was
considering defendant for conditional release. The trial court’s order stated that
“The court, after reviewing all the testimony and reports regarding [defendant],
concludes that it cannot agree with [defendant’s] experts that she does not suffer from
mental illness, clearly, she does. That fact by itself, however, does not automatically
require continued confinement. The court also has difficulty with Dr. Malis’s testimony as
it is evident he will never acknowledge [defendant] is proper for release until she consents
to the taking of psychotropic medications even though her psychosis has been in remission
for over eight years without medication.
The court finds that the analysis of Dr. Kane is closest to what currently afflicts
[defendant], basically borderline personality disorder. [Defendant] clearly needs to have
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2021 IL App (2d) 191090-Umental health treatment and therapy. The court, however, for reasons previously discussed,
both of the fault of [defendant] and the fault of [DHS], will never receive that treatment
while in the custody of the [DHS].
The court, in determining what would be proper treatment for [defendant], has
again considered all evidence presented and the factors set forth in 730 ILCS 5/5-2-4(g).
As to the statutory factors, the court finds:
1. [Defendant] does appreciate the harm she caused in the murder of her child and is
burdened by her actions.
2. The court continues to have some concerns as to whether [defendant] completely
understands that her prior conduct was caused by her developing mental illness and not
merely caused by the medications she was taking at the time of the offense.
3. [Defendant’s] prior psychotic episodes are now in remission and have been so for some
time. Obviously, to date this has only been established in a secured environment. Since her
confinement to the Elgin Mental Health Facility, [defendant] has shown an unwillingness
to comply with the programs and counseling that DHS requires but, the problem is also, in
part, due to the failure of DHS to even attempt to establish a transition program where
[defendant’s] conduct can be observed outside of the secured environment. Defendant has
been granted no privileges at DHS.
4. [Defendant] refuses to take any medication for her mental illness and believes such
medication caused her mental illness to begin with. That said, [defendant’s] acute mental
illness is in remission and has been for an extended period of time without medication.
5. The adverse effects of medication on the [defendant] are unidentifiable as she has refused
any medication.
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2021 IL App (2d) 191090-U6. The question of [defendant’s] mental health possibly deteriorating without medication
cannot be assessed. As indicated, she has refused medication, however, having been off
medication for a significant period of time, her psychotic features have remained in
remission.
7. [Defendant] has some history of alcohol abuse, but it is also in remission while in a
secured setting.
8. [Defendant] has a limited criminal history other than the crime for which she was found
insane.
9. There is no evidence regarding any specialized physical or medical needs of [defendant].
10. [Defendant] has a mother and a sister in the area, but their participation or involvement
with [defendant] if she were to be released, was not established.
11. Based on the findings of Dr. Kane, the court believes that [defendant] is not a danger
to others. There was testimony that she may be a danger to herself based on the suicide
episode in November of 2017 after this court’s denial of her request for discharge or
conditional release. The court believes this was solely based on the denial of discharge or
conditional release at that time. As previously indicated, [defendant] continues to show
irritability and aggressiveness, but no physically violent behavior has been shown toward
staff or other patients. In fact, [defendant] has been the subject of abuse by other patients
without retaliating. It is not possible to determine the dangerousness to herself unless a
transition program is established to see how [defendant] conducts herself in unsecured
environment situations.
It is the court’s opinion that the evidence presented does not establish that
[defendant] is in need of mental health services on an inpatient basis. At the same time, the
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2021 IL App (2d) 191090-Uevidence does not establish that [defendant] is ready for discharge. The court believes that
the proper course of action at this time is to formulate a plan for the [defendant’s]
conditional release from the Illinois Department of Human Services. The court believes
that what has been discussed herein is that the Illinois Department of Human Services
cannot provide for [defendant’s] mental health treatment. [Defendant] needs to be in an
environment where she will be able to work in conjunction with treating staff and not in
opposition to them. If [defendant] cannot demonstrate an ability to do so, then this court
would have to reconsider her placement.”
The trial court then provided a list of conditions for defendant to meet before granting her
conditional release. DHS was ordered to transfer defendant back to Chicago-Read.
¶ 30 On December 11, 2019, the trial court held a hearing to determine if defendant had met the
requirements for conditional release. Defendant filed a memorandum detailing her plans for
conditional release, and DHS filed a NGRI Interim Treatment Plan Report prior to the hearing.
Defendant was unable to secure housing with outpatient facilities as she would not consent to
medication. She was able to secure outpatient mental treatment and housing through legal and
mental health advocates. She provided a lease for an apartment in Glen Ellyn and a bank account
statement showing an account containing $10,000 deposited by Dr. Tasch. Defendant had secured
the services of licensed clinical psychologist Dr. Laura Bauhof to provide further mental health
treatment. Dr. Bauhof agreed to submit defendant’s treatment progress reports to the trial court
and DHS every 90 days. Dr. Bauhof further agreed to notify DHS of any violations by defendant
of her conditional release.
¶ 31 DHS’s NGRI Interim Treatment Plan Report stated that defendant’s treatment team
“remains concerned about her ability to manage stress and cope effectively with day-to-day
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2021 IL App (2d) 191090-Uproblems in living in the community.” Additionally, the report stated that defendant “continues to
be consumed by her antipathy toward DHS and its staff. She struggles to focus on very little else
***.”
¶ 32 Following the trial court’s review of the evidence presented at the December 11, 2019,
hearing, defendant was granted conditional release for a period of five years and required to
cooperate with mental health and counseling services, submit to random alcohol testing for at least
six months, and have no unsupervised contact with any person under the age of 17. Defendant was
released from the custody of DHS.
¶ 33 On December 20, 2019, this court granted the State’s emergency motion to stay the trial
court’s conditional release order. Defendant was returned to DHS custody.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 The State contends that the trial court erred in finding that defendant should be released
from inpatient treatment. The State argues that defendant failed to show that she is not a danger to
herself or others.
¶ 37 Following an acquittal by reason of insanity, a defendant bears the burden of proving by
clear and convincing evidence that a petition for conditional release or discharge should be granted.
See 730 ILCS 5/5-2-4(g) (West 2018). The defendant's burden is to show by clear and convincing
evidence that, due to his or her mental illness (regardless of whether it was enough to require
involuntary admission), defendant is not reasonably expected to inflict serious harm upon
defendant's self or another and would not benefit from further inpatient care or be in need of such
inpatient care. Under a plain reading of the statute, if defendant proves either element, namely
defendant is (1) not reasonably expected to inflict serious physical harm upon defendant’s self or
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2021 IL App (2d) 191090-Uanother or (2) defendant would not benefit from inpatient care or is not in need of inpatient care,
by clear and convincing evidence, the judge must grant the petition for conditional release. See
730 ILCS 5/5-2-4(a-1)(B) (West 2018). In determining whether a defendant should be released,
the trial court should consider:
“(1) whether the defendant appreciates the harm caused by the defendant to others and
the community by his or her prior conduct that resulted in the finding of not guilty by
reason of insanity;
(2) Whether the person appreciates the criminality of conduct similar to the conduct for
which he or she was originally charged in this matter;
(3) the current state of the defendant's illness;
(4) what, if any, medications the defendant is taking to control his or her mental illness;
(5) what, if any, adverse physical side effects the medication has on the defendant;
(6) the length of time it would take for the defendant's mental health to deteriorate if the
defendant stopped taking prescribed medication;
(7) the defendant's history or potential for alcohol and drug abuse;
(8) the defendant's past criminal history;
(9) any specialized physical or medical needs of the defendant;
(10) any family participation or involvement expected upon release and what is the
willingness and ability of the family to participate or be involved;
(11) the defendant's potential to be a danger to himself, herself, or others; and
(12) any other factor or factors the Court deems appropriate.” 730 ILCS 5/5-2-4(g) (West
2018).
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2021 IL App (2d) 191090-UThe trial court’s determination as to whether a defendant has carried her burden under section 5-
2-4(g) by clear and convincing evidence must be respected unless such determination is against
the manifest weight of the evidence. People v. Wolst, 347 Ill. App. 3d 782, 790 (2004). A finding
is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or
if the finding itself is unreasonable, arbitrary, or not based on the evidence presented. Best v.
Best, 223 Ill. 2d 342, 350 (2006).
¶ 38 A State may commit a person found not guilty by reason of insanity when that verdict
establishes that (1) the defendant committed an act that constitutes a criminal offense and (2) the
defendant committed the act because of mental illness. Jones v. U.S., 463 U.S. 354, 363 (1983). A
defendant found not guilty by reason of insanity may be confined to a mental health institution
until such time as sanity is regained or defendant is no longer a danger to herself or others. Jones,
463 U.S. at 368. As a matter of due process, continued confinement of a harmless, mentally ill
person is unconstitutional. Foucha v. Louisiana, 504 U.S. 71, 77 (1992). In Illinois, a defendant
found not guilty by reason of insanity in need of mental health services on an inpatient basis due
to mental illness is defined as “a defendant who has been found not guilty by reason of insanity
but who, due to mental illness, is reasonably expected to inflict serious physical harm upon himself
or another and who would benefit from inpatient care or is in need of inpatient care.” 730 ILCS
5/5-2-4(a-1)(B) (West 2018). If the court finds that the defendant is no longer in need of mental
health services, it shall order defendant’s conditional discharge. 730 ILCS 5/5-2-4(h) (West 2018).
¶ 39 Here, the trial court’s findings that defendant suffered from mental illness and that she is
in need of inpatient care are not at issue. Rather, the issue is the State’s argument that defendant
did not show by clear and convincing evidence that she was not reasonably expected to inflict
serious physical harm upon herself or others.
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2021 IL App (2d) 191090-U¶ 40 The trial court heard testimony from five expert witnesses who provided varying opinions
as to whether defendant could reasonably be expected to inflict serious physical harm upon herself
or others. Ultimately, the trial court found, based on the testimony of Dr. Kane, that [defendant] is
not a danger to herself or others. See supra ¶ 26. The State argues throughout its brief that the
testimony of Dr. Malis supports its proposition that defendant requires continued inpatient mental
health treatment as Malis believes defendant to be delusional and a danger to herself and others if
granted conditional release.
¶ 41 The trial court is in the best position to resolve the conflicts between the experts’ testimony
and determine their credibility. Flynn v. Cohn, 154 Ill. 2d 160, 169 (1992). When considering an
appeal regarding the sufficiency of the evidence, this court will not retry the case. People v. Collins,
214 Ill. 2d 206, 217 (2005). The trial judge in a bench hearing like the one at issue in the present
case sits as the trier of fact: determining the credibility of witnesses, weighing the evidence,
drawing inference from that evidence, and resolving conflicts in the evidence. People v. Siguenza-
Brito, 235 Ill. 2d 213, 228 (2009). This court does not substitute its judgment for that of the trial
court in making evidentiary determinations. Best, 223 Ill. 2d 350-51 (2006).
¶ 42 The trial court found Dr. Kane’s analysis and diagnosis of defendant’s mental health the
most credible among the experts presented and based its findings on her testimony. Accordingly,
while we will examine the trial court’s findings on each statutory factor, we will focus our review
of the trial court’s findings as to whether defendant remains a danger to herself based on Kane’s
testimony.
¶ 43 As to the first two statutory factors (730 ILCS 5/5-2-4(g)(1), (2) (West 2018)), the trial
court determined that defendant appreciates and is burdened by the harm she caused in murdering
Magdalene. The trial court expressed concern that defendant does not completely understand that
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2021 IL App (2d) 191090-Uthe murder of her daughter was caused by her mental illness instead of the medications she was
taking. We agree with the latter finding.
¶ 44 This court has had the opportunity to review the entire record in this case and noticed that
defendant’s murdered daughter’s name, Magdalene, appears sparsely outside of the indictment
where she is mentioned repeatedly. What is clear from our review of this case is that defendant has
actively avoided any discussion of her daughter with her treating staff. Throughout the record,
defendant blames—exclusively--withdrawal from psychotropic medications as the scapegoat for
what happened to her four-year old girl. It appears that defendant’s newly secured legal and mental
health advocates share in defendant’s approach to the cause of her underlying crime. This court
will not speculate on the veracity of these beliefs regarding the discontinuation of psychotropic
medications as the cause of what happened to defendant’s daughter.
¶ 45 As to the third, fourth, fifth, and sixth statutory factors (730 ILCS 5/5-2-4(g)(3)-(6) (West
2018)), the trial court accepted Dr. Kane’s diagnosis of defendant as suffering from borderline
personality disorder and recognized that her prior psychotic episodes have been in remission since
discontinuing medication. As such, the trial court recognized that any adverse effects of medication
on defendant, or whether her mental health would deteriorate without medication could not be
identified. The trial court acknowledged that Dr. Malis’s belief that medication would be of benefit
to defendant before being granted conditional discharge was problematic as “it is evident [Dr.
Malis] will never acknowledge [defendant] is proper for release until she consents to the taking of
psychotropic medications even though her psychosis has been in remission for over eight years
without medication.” However, Dr. Kane opined that defendant was more stable and insightful as
to her mental condition when on medication.
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2021 IL App (2d) 191090-U¶ 46 Regarding the seventh statutory factor (730 ILCS 5/5-2-4(g)(7) (West 2018)), the trial court
found defendant “has some history of alcohol abuse, but it is also in remission while in a secured
setting.” The trial court was presented with evidence that defendant has not consumed alcohol in
over ten years and displayed no symptoms of alcohol addiction while in DHS custody. Defendant
did complete treatment for alcohol abuse while in custody and participated in Alcoholics
Anonymous meetings.
¶ 47 In making its determination under the eighth statutory factor, the trial court found
defendant to have “a limited criminal history other than the crime for which she was found insane.”
(730 ILCS 5/5-2-4(g)(8) (West 2018)). The record shows defendant having been convicted for
driving under the influence in 1998 and 2002. The State argues that this court should take issue
with the trial court’s finding on this factor and consider a 2007 altercation defendant had with a
Walmart employee and a 2010 incident between her and another inmate in the Du Page County
jail. Additionally, the State points to incidents noted in reports filed with the trial court by DHS
detailing various incidents between defendant and other patients, as well as staff members.
However, the State fails to explain to this court how those additional alleged incidents are
indicative of “criminal history.” We decline to reweigh the evidence on this statutory factor in the
manner the State suggests.
¶ 48 The trial court found no evidence was presented regarding any specialized physical or
medical needs of defendant. See 730 ILCS 5/5-2-4(g)(9) (West 2018). Our review of the record
takes no issue with the trial court’s determination on this statutory factor.
¶ 49 Regarding the tenth statutory factor (730 ILCS 5/5-2-4(g)(10) (West 2018)), the trial court
found that defendant “has a mother and sister in the area, but their participation or involvement
with [defendant] if she were to be released, was not established.” The State argues that defendant
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2021 IL App (2d) 191090-Uis alienated from her family but will not talk about it so it is unclear what role, if any, they will
play if she is granted conditional discharge. Her father recently passed away. We agree with the
State and the trial court that the amount of participation or involvement defendant will receive
from her family was not established. Indeed, this court is concerned that this could be a problem
for defendant upon conditional discharge. At the hearing on December 11, 2019, defendant
presented the trial court with evidence of support from her legal and mental health advocates. They
assisted her in securing an apartment and generous funds in her bank account. Additionally, her
legal and mental health advocates helped defendant secure outpatient treatment as required by the
trial court in its September 18, 2019, order.
¶ 50 The eleventh statutory factor requires the trial court to determine “the defendant’s potential
to be a danger to *** herself, or others[.]” 730 ILCS 5/5-2-4(g)(11) (West 2018). This factor is of
particular import to this case as the determination of whether defendant can be expected to be a
danger to herself or others is also a necessary element in the definition of someone who is in need
of inpatient services. See 730 ILCS 5/5-2-4(a-1) (West 2018). Here, the trial court found
“Based on the findings of Dr. Kane, the court believes that [defendant] is not a
danger to others. There was testimony that she may be a danger to herself based on the
suicide episode in November of 2017 after this court’s denial of her request for discharge
or conditional release. The court believes this was solely based on the denial of discharge
or conditional release at that time. As previously indicated, [defendant] continues to show
irritability and aggressiveness, but no physically violent behavior has been shown toward
staff or other patients. In fact, [defendant] has been the subject of abuse by other patients
without retaliating. It is not possible to determine the dangerousness to herself unless a
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2021 IL App (2d) 191090-Utransition program is established to see how [defendant] conducts herself in unsecured
environment situations.”
This court finds defendant’s November 2017 suicide attempt to be particularly concerning. The
trial court found Kane’s opinion as to this factor to be specifically credible. As such, we cannot
agree that the trial court’s finding that defendant is not a danger to herself is reasonable and
supported by the manifest weight of the evidence. Kane testified as to her concerns about
defendant’s ability to cope with the stress of transition to the community and whether she would
be properly monitored for symptoms of mental illness if granted conditional discharge. The trial
court’s reliance on Kane’s opinion as the basis for its finding on this factor gives pause to this
court, as Kane testified that she believed defendant should continue with inpatient treatment. But
most importantly, the trial court agreed that Kane’s diagnosis of borderline personality disorder
was accurate as to defendant. Kane testified that suicide attempts were consistent with borderline
personality disorder and further stated that those who have attempted suicide, like defendant, are
more at risk of attempting suicide again and more at risk of succeeding on another attempt.
¶ 51 The trial court further stated in its findings that defendant “may be a danger to herself”
based on her November 2017 suicide attempt but dismissed the attempt as “solely based on the
denial of discharge or conditional release at the time.” This court does not agree with the trial court
that the defendant’s November 2017 suicide attempt was solely based on the denial of her
discharge petition, and we believe that defendant may remain a danger to herself. Kane testified
that, in addition to the denial of the petition, defendant said she was worried that she could not
provide for her children and believed her death could benefit her children through a wrongful death
suit against DHS. Additionally, Kane testified that defendant had written on the walls during her
suicide attempt, in a strikingly similar fashion to what she did in the bathroom where she murdered
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2021 IL App (2d) 191090-UMagdalene. Defendant had been saving up the Fioricet pills she used to attempt suicide for three
years. Kane testified that this behavior raised concerns as to whether defendant had been planning
to harm herself. The finding that defendant’s November 2017 suicide attempt was based solely on
the denial of her earlier discharge petition is not supported by the evidence presented. The trial
court’s reliance on Kane’s diagnosis of borderline personality disorder makes its finding that
defendant is no longer a danger to herself unreasonable and seems to selectively ignore Kane’s
testimony as a whole.
¶ 52 We concur with the trial court’s statement that “[i]t is not possible to determine
[defendant’s] dangerousness to herself unless a transition program is established to see how the
petitioner conducts herself in unsecured environment situations.” However, we cannot agree that
defendant should be granted conditional discharge based on the evidence presented. Again, the
trial court parted ways with Dr. Kane’s opinion that defendant needs further inpatient treatment
after agreeing with her diagnosis of defendant as suffering from borderline personality disorder.
In addition to Kane’s concerns regarding defendant’s November 2017 suicide attempt based on
this diagnosis, she believed defendant’s potential for self-harm was greater on conditional release
because she would be monitored much less. She also expressed concern that defendant’s alcohol
abuse disorder, while in remission in a controlled environment, could be subject to relapse when
no longer in a secure setting. She further testified that alcohol use could exacerbate defendant’s
mental health symptoms. Defendant herself expressed apprehension in her willingness to attend
Alcoholics Anonymous meeting upon discharge because it reminds her of Magdalene as she used
to take her to those meetings before she murdered her.
¶ 53 Throughout the proceedings below and evidenced in the many reports submitted by DHS,
defendant has consistently exhibited combativeness and irritability when things do not go the way
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2021 IL App (2d) 191090-Ushe would like, including the suicide attempt after the denial of a previous petition for conditional
release. The trial court accepted Dr. Kane’s diagnosis of borderline personality disorder regarding
defendant and this court accepts that diagnosis as well. Undoubtedly, defendant would face the
same day-to-day problems and annoyances that every other person in our community faces.
However, she and her mental health advocates choose not to address her underlying mental illness
and continue to focus solely on her experience with psychotropic medication as the source of all
her tribulations. This court fears she will not be able to fulfill the requirements of her conditional
release as defendant has not even met DHS’s requirements for off-unit privileges during her time
as a patient.
¶ 54 To reiterate, defendant must prove by clear and convincing evidence that she is not
reasonably expected to inflict serious physical harm upon herself or another or would not benefit
from inpatient care or is not in need of inpatient care. See 730 ILCS 5/5-2-4(a-1)(B) (West 2018).
This court’s review of the record, along with the trial court’s articulated findings and expert
reliance, illustrates that defendant remains in need of inpatient hospitalization as no clear and
convincing evidence was presented to support the notion that she would not reasonably be
expected to inflict harm upon herself if granted conditional release. Based on the foregoing, the
trial court’s finding that defendant is not a danger to herself is not supported by the manifest weight
of the evidence. This court agrees with the testimony presented by Dr. Kane that defendant needs
further inpatient treatment to address her mental illness before being considered for conditional
discharge.
¶ 55 III. CONCLUSION
¶ 56 Accordingly, the judgment of the circuit court of Du Page County is reversed.
¶ 57 Reversed.
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