SPRINGFIELD - Supreme Court Justices picked two cases to guide local and appellate judges in deciding when to declare a suspect too dangerous to release.
On June 11 they allowed an appeal from a Fourth District appellate court opinion affirming detention of Kendall Morgan on home invasion and battery charges in McLean County.
On June 12 they allowed an appeal from a Third District opinion affirming detention of Christian Mikolaitis on charges of attempted murder and aggravated battery in Will County.
State law generally requires release of suspects but the state can move to detain those who present a threat of danger or a risk of flight.
In the Will County case, local resident Alec Geibel told police at Silver Cross Hospital in Joliet that Mikolaitis stabbed him.
Mikolaitis’s mother called 911, said he told her it happened, and described his car.
His girlfriend called 911 and said he told her he stabbed Geibel because he hated him.
Police found Mikolaitis and the state charged him with attempted first degree murder and aggravated battery.
The state petitioned for detention stating Mikolaitis posed a threat to Geibel.
His counsel asked for release with electronic monitoring, stating Mikolaitis was 19 and received treatment for depression and anxiety.
Circuit Judge Margaret O'Connell asked Mikolaitis if he was taking his antipsychotic medicine and he said no.
O’Connell granted detention, finding proof was evident that Mikolaitis committed a detainable offense and he posed a real and present threat to Geibel.
She found no conditions could mitigate the threat the defendant posed. She said by not taking his medicine he posed a question as to whether he could abide by conditions of release.
Third District Judges William Holdridge and Liam Brennan affirmed O’Connell in April and Judge Mary McDade dissented.
Holdridge wrote that they reviewed O’Connell’s findings under a standard of manifest weight of evidence but they considered her decision for abuse of discretion.
“Under either standard, we consider whether the court's determination is arbitrary or unreasonable,” he wrote.
He found the state must find proof or great presumption that a defendant committed a detainable offense.
He found the state must prove a defendant poses a real and present threat to any person or persons or would likely flee to avoid prosecution.
He found the state must prove no conditions could mitigate threat of danger or risk of flight.
He found the statute includes factors of danger a judge can consider and provides a list of conditions a judge can apply.
He found the statute specifies that the court shall consider factors of danger on available information, indicating the state shall present evidence supporting the factors.
He found O’Connell did not err in finding Mikolaitis’'s failure to abide by his doctor's directives indicated he would not follow conditions she placed on him.
“Therefore, the court did not abuse its discretion in granting the petition,” he wrote.
Judge Mary McDade dissented, finding it elementary that to meet its burden the state would address at a minimum the conditions the statute listed.
“Of course, not every conceivable condition needs to be addressed by the State to meet its burden,” she wrote.
“But the language of that section shows that the legislature contemplated what conditions would arguably be applicable and mandated that the State present evidence and argument on them.”
She found the state presented no evidence regarding any condition or combination of conditions that could mitigate the safety threat Mikolaitis posed.
Brennan responded to McDade in a special concurrence, finding she’d require the state to argue why each potential condition shouldn’t apply.
He found the required content of a detention petition didn’t address conditions the court might impose to mitigate a threat.
He found to the extent mental health played a role in the attack, that in no way supported that some conditions short of detention would mitigate the threat.
He found Mikolaitis’s noncompliance with medication supported an opposite inference.
He found common sense consideration of the strength of a case, a defendant’s mental condition, and past compliance with probation can satisfy the burden of proof.
“The state’s burden does not obligate it to specifically address the efficacy of every conceivable condition or combination of conditions," he wrote.
At the Fourth District, no conflict arose where judges Eugene Doherty, Amy Lannerd and David Vancil affirmed detention of Kendall Morgan.
The state alleged he kicked in the front door of his child’s mother Vanessa Williams who had filed for a protective order against him.
The state alleged he hit her face and threw her against a mirror which cracked; two children ran to a neighbor’s home and called 911; officers arrived and took him into custody after a struggle.
Morgan was serving 30 months on probation for aggravated battery of a peace officer.
He had pending prosecutions for driving under the influence and battery against Williams.
He was convicted of an armed robbery that happened in 2007 and was sentenced to 14 years.
The state charged him with home invasion and battery and filed a petition for detention.
At a hearing before Circuit Judge Amy McFarland, Morgan’s counsel proffered evidence that he had just been diagnosed as bipolar and would comply with treatment.
Counsel suggested electronic monitoring with a prohibition on contact with Williams.
Counsel said Morgan might assert an affirmative defense of involuntary intoxication because he had taken a pain pill from a friend and blacked out before attacking Williams.
McFarland concluded that no conditions could mitigate the threat Morgan posed, particularly because he committed the charged offenses while on probation.
Her order prohibited contact.
On appeal Fourth District judges found McFarland was concerned about Morgan’s continuing misconduct on probation or pretrial release.
“This is a highly relevant concern as a defendant’s release on conditions depends on the court having confidence that the defendant will comply with those conditions,” Doherty wrote.
He focused more on the structure of appellate review than on Morgan.
He wrote that when the state seeks to detain a defendant, the law authorizes it to proceed by way of “proffer based upon reliable information.”
He found a proffer normally is a statement as to evidence and is not considered evidence but the release statute permits presentation of “evidence at the hearing by way of proffer.”
“This creates an anomaly because the state’s proffered ‘evidence’ must reach the level of clear and convincing weight in order to justify detention,” he wrote.
He found it unclear how to weigh a proffer the same way a judge weighs witness testimony or documentary evidence.
“A more apt description of the standard of proof in the trial court, at least where proffers are involved, might be proof by a clear and convincing description of the evidence.”
“It is not difficult to see how this description, though accurate, is out of harmony with traditional notions of the burden of proof,” he wrote.
He wrote, “Selecting a standard of appellate review of decisions made under such a curiously constructed standard of proof presents a significant challenge.”
“If the standard in the trial court is doctrinally unsound, it becomes more difficult to have confidence in the standard of review in the appellate court.”
He found neither a trial court nor an appellate court can decide the weight to give to the credibility of a declarant whose testimony was described by way of proffer.
He found the statute directs a court to consider eight factors of dangerousness.
"There can be little doubt that not all judges would examine and balance all relevant factors in precisely the same way or even reach the same result,” he wrote.
“It is not even a finding of historical fact but a prediction of the risk of future conduct.”
He quoted the U.S. Supreme Court that prediction of conduct is based on a host of variables which cannot be readily codified.
He found where evidence is composed of proffers a trial court’s decision is similar to a decision on a temporary restraining order in a civil proceeding.
He found a hearing on such an order is composed of specific facts shown by affidavit or verified complaint.
He found a trial court must determine whether immediate and irreparable injury, loss, or damage will result if it doesn’t issue an order.
He found evidence at some hearings might extend to live witness testimony, police reports, body camera footage, text messages, and jail calls.
He found even where all the evidence is presented by way of proffer, “a trial court has the ability to observe something that the reviewing court never will: the defendant.”
He found a trial judge can observe a defendant’s demeanor and whether he or she appears compliant versus defiant or threatening.