I'll probably have a lot to say about the Gunderson case going forward. But because the conditional release ended up being negotiated as an agreed order, I never gave closing arguments. I had prepared and practiced them, however; so I'll publish what I prepared here, and it won't be completely wasted.
CLOSING ARGUMENT FOR GRANTING SEAN GUNDERSON'S CONDITIONAL RELEASE (CIRCA SEPTEMBER 9, 2019)
First, if it please the Court, I need to make what I believe is an important point of law. This is relevant, if not critical...
If I seem to belabor this point, I hope everyone will be patient. The Court may recall that both Assistant State's Attorney Nancy Nazarian and Elgin Mental Health Center administrator Tom Zubik, and possibly others have repeatedly characterized the instant Petition for Conditional Release, brought by Mr. Gunderson under ILCS 5/5-2-4(e), as a "self petition". But there is no such legal thing. I've looked everywhere for this term, and I cannot find it.
"Self petition" appears precisely nowhere in the relevant statutes, including the Illinois Mental Health and Developmental Disabilities Code [405 ILCS 5/1-100 et seq.], the Illinois Unified Code of Corrections [730 ILCS 5/1-1-1 et seq.], or the Illinois Code of Criminal Procedure [725 ILCS 5/100-1 et seq.].
Likewise, "self petition" appears nowhere in local, state or federal court rules, and nowhere in the Illinois Administrative Codes and Regulations. A Lexis search of all Illinois federal and state cases brings up only four in which the term "self petition" appears, and all four of those are immigration cases with no relevance to involuntary hospitalization for mental health treatment after an NGRI verdict.
Nevertheless, people have used this characterization, perhaps, to suggest that this petition should not be taken seriously. That would be inappropriate. Some such category as "self petition" may have significance for internal clerical purposes in some small corner of our state bureaucracy. It has no significance whatsoever in the law.
Yet, during a brief hearing on July 3, 2019, the record shows that Assistant State's Attorney Nazarian told the Court that it might be "inappropriate to put any pressure on anyone at Elgin Mental Health Center" to complete a promised evaluation of the Defendant/Petitioner's aftercare plan and placement at a group home pending the Court's hoped-for order for conditional release. Ms. Nazarian argued at the time that such pressure might be inappropriate precisely because "this is a self petition" not favored by everyone at Elgin or in the Department of Human Services.
The Court was crystal clear in statements for several months that the Defendant/Petitioner's aftercare plan and placement were among the most important, if not the most important issues in this long, drawn-out litigation. The Court even stated on the record on two occasions, that it could conceivably order Elgin or Department employees into court to show cause why they should not be held in contempt for failing or refusing to evaluate the written aftercare plan and placement, which had been prepared and explained in detail in sworn testimony months earlier by Defendant/Petitioner's Social Worker.
The Court has been equally adamant that various smaller issues which may have been tediously disputed between previous witnesses in this case - independent experts, treating clinicians, Elgin administration, or Department employees - are of lesser importance than the Court's own determination based on all evidence, regarding whether Mr. Gunderson, the Defendant/Petitioner, is legally appropriate for conditional release, and under what circumstances.
But again: beyond the sly, gratuitous, negative implications of several individuals opposing the Defendant/Petitioner in this litigation, there simply is no such thing as a self petition.
730 ILCS 5/5-2-4(e) establishes that:
A defendant admitted pursuant to this Section, or any person on his behalf, may file a petition for treatment plan review or discharge or conditional release under the standards of this Section in the Court which rendered the verdict.
This makes no mention or hint of any different kind of petition, which would be filed by Department or facility staff. It simply presumes that all petitions for conditional release are the same under the law for purposes of legal procedural, and it intends that all petitions are filed by or on behalf of the admitted defendant, regardless of specific authorship, collaboration or lack of the same, or bureaucratic procedures that might incidentally apply outside the court process, prior to filing.
We therefore ask for the record and as a point of law, that the Court disregard all characterizations of the current petition for conditional release under 730 ILCS 5/5-2-4(e) as "a self petition".
With that legal point out of the way....
This case has been litigated, or maybe over-litigated, to an unusual extent. The Court has repeatedly noted that it's a very serious case. We would argue that the seriousness of the Petitioner's NGRI crime is one reason why; but there is another reason as well: that is the seriousness of an individual's right to liberty as it impacts the safety and honor of the community.
With our forensic psychiatry we presume that medicine and science can inform us: first, that it can inform us about whether an accused is culpable in crime; second, that it can inform us (if the accused is deemed not culpable) about whether he/she can be effectively treated and by what methods; and lastly we presume that it can inform us at a later time about whether treatment has succeeded. All these presumptions are questionable.
But we want to help, not just punish, and that speaks well of us. It also requires us to incur some degree of risk. Obviously, our medicine and science, forensic psychiatry in particular, no matter how we might like to portray "clear and convincing" or any evidentiary standard, are not up to eliminating all risk.
So one way to look at the issue in this case is, what degree of risk will we incur if the Court conditionally releases Sean Gunderson? We argue that we will incur very little, especially with the aftercare plan and placement that has been submitted to the Court in substantial detail.
But first of all, remember that Mr. Gunderson has shown no recurrence of psychotic symptoms for the last eight years during which mental health experts at Elgin have watched him more or less continuously and carefully documented their observations every day. He has not even needed medication to suppress symptoms of mental illness or to control his behavior, and this is... a highly unusual positive factor that should inspire even more confidence. Most NGRI acquittees are released on a condition that they'll take meds, but they hate the meds, so they stop taking them on their own without telling anyone. There's no need to worry about that here.
Secondly, a theory has been voiced that out in the community, no longer in a controlled environment, Mr. Gunderson will face different kinds of stress, different triggers, that he is not used to. But the stress on any person from being deprived of liberty is huge. The stress from being told you don't know what's in your own best interest, the stress from having your everyday movements and communication, and even your thoughts prescribed by so-called "experts" who might barely know you... there's comparatively little of that stress outside of involuntary confinement in the state's psychiatric institution. For eight years. this Petitioner has been mentally and emotionally stable and non-aggressive in the face of such continuous, day-in-and-day-out invalidation and dehumanization. He has held up very well under such stress, and come out the other side of the ordeal without hostility. Now he simply wants a gradual increase in liberty, and a chance at becoming a productive citizen and member of the community.
Some people might say, well, what if there is such a thing as schizophrenia, a real brain difference or defect, which predisposes this petitioner to be violent in certain circumstances that we cannot predict? What if that... is just waiting to be triggered? Of course, we cannot prove such a thing doesn't exist. We would have the same problem Alice Kyteler had in the year 1324, when she was prosecuted by the Bishop of Ossary for witchcraft.
But if we are assessing risks under a catalogue of what if scenarios, consider this one. What if we deprive a person of liberty for no good reason? Can we just say he committed a violent act, so too bad for him? We decided he's not culpable, that's what NGRI means! His violent act might prove by common sense that he was dangerous at the time he committed it, but whether he is dangerous now, many years later, is a matter of substantial conjecture and little or no certainty.
There are all kinds of supposed "experts". We have ours, they have theirs, and none of them will be held responsible to accurately predict the future. Whether the Petitioner is mentally ill and dangerous is not fundamentally an issue of scientific or medical fact. It's an issue of what we feel we must do to justly balance risks. On one hand there's the risk that a poorly understood brain disease (schizophrenia) will come back after many years of lying mysteriously dormant, and make the Petitioner attack his parents once again; on the other hand there's the risk that we will really be punishing someone under cynical pretenses of help and community protection, just because we are afraid, dishonorable, and we can't figure out what else to do.
As the Court might realize from the testimony of a couple Elgin witnesses, there is a strong tendency to punish psychiatric patients for not toeing the institutional line, for not believing and saying the correct things, regardless of the objective acceptability of a patient's behavior. I am referring to Mr. Zubik and Dr. Corcoran. This Petitioner lodged too many complaints for their convenience, although he put them all in correct form and forwarded them to the correct authorities, who more often than not validated them. It took 34 written complaints about Mr. Zubik's new clothing policy, but the federally mandated protection and advocacy agency Equip For Equality, finally made Zubik rescind that policy because of Mr. Gunderson's well-reasoned whistle blowing. When he testified under oath in this court however, the Forensic Program Director of Elgin Mental Health Center briefly tried to "gaslight" Mr. Gunderson, pretending that he was irrationally advocating against his own interest in being generously allowed more clothes than before.
The iPods, which were confiscated in January of this year, were falsely portrayed by Dr. Corcoran during his testimony as "contraband", long after it was a matter of record that these items had been returned to Mr. Gunderson because they were not contraband: they had no recording ability, and they had been approved by Elgin security months earlier, when they first arrived. Dr. Corcoran also sought repeatedly to alter, for the worse, the Elgin treatment team's favorable reports of Mr. Gunderson's progress to this Court. We don't really know how long Corcoran was successful with such sabotage, before the treatment team's conscientious objections finally uncovered it.
For years, the Petitioner was overtly or covertly punished for not taking psychiatric drugs, although by now everyone recognizes that he doesn't need to, and even that he shouldn't. Hopefully the Court recalls the testimony and voluminous reports of our mental health experts, Wayne Beyer, Dr. Toby Watson, Dr. Gail Tasch, and Linda Grossman, who all believed Mr. Gunderson should not take drugs and should be conditionally released. And of course, Dr. Kim, who is very much a functionary of the state forensic mental health system, most recently stated that with an appropriate aftercare program, he would also support this Petitioner's conditional release. We now have that aftercare program.
Releasing Mr. Gunderson to an appropriate group home, under the conditions of the aftercare plan now endorsed by Elgin and the Department, will give him his best chance of successful reintegration into the community, and provide justice for all relevant parties. There is no legitimate interest in retribution with this case. The only purposes here are treatment success and community security. Treatment success has been evidenced for years already. Substance abuse education and prevention programming should of course continue in the community, and and apparently that can be better facilitated with conditional release that by continued hospitalization at Elgin. (RENZ won't accept Gunderson from Elgin, but the aftercare program has its own equivalent outpatient facility.)
Everyone agrees with the need for close supervision and gradual increases in privileges, with regular court reports and immediate notice of anything untoward (e.g., a positive drug screening). However with these precautions in place, the Court can be confident that any risk to community safety by Mr. Gunderson's conditional release will be minimal, and substantially less than the risk of dishonorable injustice and waste of public treasure, should we continue to arbitrarily lock him up in a state psychiatric institution merely because he complains too much or refuses to agree with somebody's favorite drug habits.
The Petitioner would like to thank this Court for its patience and careful scrutiny, not just in the last year, but for a number of years. He can only hope to repay that with his good behavior and productivity going forward, and through socially responsible membership in the community.