concurring in part and dissenting in part:
Brian Vercolio was a flasher who was found to he sexually dangerous even though his offenses were mere misdemeanors that in no way met the statute’s definition of or guidelines for sexually dangerous persons. At issue in this case are the mental health instruments used to test his “recovery” and the conditions imposed on his release to an outside treatment residence. The majority has found that (1) the actuarial testing instruments (MnSOST-R and Static-99) have been found by the Illinois Supreme Court to meet the admissibility standard of Frye, (2) the Carich 25-variable test is generally accepted by experts in the relevant field and thus meets the Frye standard, and (3) only one of the seven conditions of release challenged by Vercolio is problematic and should be reconsidered. I agree with the first finding and therefore concur with it. I respectfully dissent, however, from the other two findings and for the reasons stated would remand the entire matter to the La Salle County circuit court for reconsideration.
I. Frye Challenges to the Testing Instruments
A. MnSOST-R and Static-99
As the majority has pointed out, the Illinois Supreme Court has recently held that the MnSOST-R and the Static-99 actuarial testing instruments meet the “general acceptance” standards for admissibility under Frye. In re Commitment of Simons, 213 Ill. 2d 523, 821 N.E.2d 1184 (2004). The respondent’s Frye challenge with regard to those instruments has been rendered moot by Simons, and I concur with the majority’s decision in that regard.
The Simons court, in its holding, found that these testing instruments were generally accepted testing methodologies and could appropriately be admitted in court proceedings without additional validation. The court did not, however, hold that their use was warranted or relevant in all cases. In the 2002 jury trial on Vercolio’s 1998 application showing recovery, Dr. Ijaz Jatala, psychiatrist for the sexually dangerous persons program at Big Muddy, and Dr. Mark Carich, the “psychologist” for that program, both testified that the Minnesota Sex Offenders Screening Tool, which showed Vercolio at high risk for reoffending, was not geared for testing exhibitionists. Although the test was admissible at Vercolio’s trial under Frye, I think this issue should be remanded for a determination of its applicability to the specific question of whether Vercolio is likely to recommit the public nuisance misdemeanor of indecent exposure (flashing).
B. Carich’s 25 Variables
I cannot agree with the majority that a showing that the acceptance of Carich’s 25 variables by a single group and the use of some but not all of the variables by others satisfies Frye’s requirement that the particular methodology has gained general acceptance in the field. I therefore respectfully dissent from that conclusion.
As Simons makes clear, our standard for reviewing Frye determinations is no longer abuse of discretion; our review is de novo.
As the majority points out, Simons makes clear that general acceptance does not mean universal acceptance, acceptance by consensus, or acceptance by a majority of experts in the field. Rather, the test is whether the methodology is relied upon by experts in the field and whether that reliance is reasonable. Simons, 213 Ill. 2d at 530.
In the present case, both the trial court and the majority appear to rest the decision that Carich’s 25 variables are generally accepted in the field on the fact that Dr. Leavitt and Dr. Campbell agreed that Carich’s actual test has been utilized by the Association for the Treatment of Sexual Abuse (ATSA). That testimony does establish that the variables are relied upon by some experts in the field. Dr. Leavitt also testified that some of the variables, but not the test itself, are used by other experts. The testimony of neither man establishes that the acceptance is general or that the reliance is reasonable.
Justice Thomas, writing for the Simons majority, has told us that we should undertake a de novo review of “general acceptance” rulings pursuant to Frye because “ ‘ “[t]he question of general acceptance of a scientific technique, while referring to only one of the criteria for admissibility of expert testimony, in another sense transcends that particular inquiry, for, in attempting to establish such general acceptance for purposes of the case at hand, the proponent will also be asking the court to establish the law of the jurisdiction for future cases.” ’ ” Simons, 213 Ill. 2d at 531, quoting People v. Miller, 173 Ill. 2d 167, 204 (1996) (McMorrow, J., specially concurring), quoting Jones v. United States, 548 A.2d 35, 40 (D.C. App. 1988). Justice Thomas has also, by his own thorough review, demonstrated for us the kind of analysis that should be undertaken in a de novo review of the general acceptance and consequent admissibility of a scientific methodology. The review undertaken by the majority considers only (1) .that the ATSA uses Carich’s 25 variables and (2) an uncritical recitation of Dr. Leavitt’s endorsement of the variables while apparently discounting Dr. Campbell’s criticism because “[h]e treated sex offenders in the past, but does not currently treat sex offenders. *** [H]e also does not assess the risk of sex offender recidivism because he does not believe that such assessments are accurate at this time.” 363 111. App. 3d at 235.
Dr. Campbell testified and asserted in both of his reports that, because of his reliance on questionable methodologies and his improper combination of certain specified factors, Carich’s use of his variables “creates an alarming risk of misinforming and misleading any legal proceeding considering Mr. Vercolio’s recidivism risk.” While one of his claims has clearly been rendered moot by the decision in Simons, not all of them have.
The supreme court observed in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63 (2002):
“Simply stated, general acceptance does not require that the methodology be accepted by unanimity, consensus, or even a majority of experts. A technique, however, is not ‘generally accepted’ if it is experimental or of dubious validity. Thus, the Frye rule is meant to exclude methods new to science that undeservedly create a perception of certainty when the basis for the evidence or opinion is actually invalid.” Donaldson, 199 Ill. 2d at 78.
That is the question we are called upon to address and resolve through our de novo review of Carich’s 25 variables.
Because I see no indication that either the trial court or the majority undertook such a review and analysis and because our decision on this matter establishes general acceptance of these variables as “ ‘the law of the jurisdiction for future cases’ ” (Miller, 173 Ill. 2d at 204 (McMorrow, J., specially concurring), quoting Jones v. United States, 548 A.2d 35, 40 (D.C. App. 1988)), and because our decision on this matter significantly impacts future determinations on the recovery and possible permanent incarceration of persons found sexually dangerous, I am compelled to dissent from the affirmance of the trial court’s decision as being without error.
In Vercolio’s prior recovery proceeding, the test devised by Dr. Carich was comprised of only 15 factors. As with the Minnesota Sex Offenders Screening Tool discussed above, Dr. Jatala and Dr. Carich both testified that the 15-factor version of the test was not geared for the exhibitionist. Even if the test was properly admitted under Frye, I could find nothing to indicate that the additional 10 factors rendered the test applicable to exhibitionists.
Accordingly, I would, at the very least, remand the case for a hearing on the applicability of the instruments to respondent’s particular type of offenses and on the validity of any findings made pursuant to their use in Vercolio’s case.
II. Challenged Conditions of Release
Even though, based on. the statute’s definition, Vercolio is not and never has been sexually dangerous, he has been incarcerated in the Department of Corrections for 12 years for a crime punishable by up to 365 days. Although the testimony of the mental health experts at trial was that he has not committed an exhibitionist act during the past four or five years of his incarceration, the opinion of those same experts, grounded in the tests discussed above, denied him a finding of complete recovery. The trial judge is to be commended for not wholly accepting Dr. Carich’s assessment that Vercolio is “still” sexually dangerous and for allowing him the opportunity for conditional release.
Pursuant to the plan submitted by the State, Vercolio’s release from Big Muddy is predicated on his perfect compliance with 53 conditions.2 Upon the “technical violation” of any of these conditions, his discharge can be revoked and he can be returned to prison. Condition No. 3 warns him that “[s]uch technical violations include but are not limited to the terms contained on attachment ‘A’ (the Certifícate of Compliance stating the 53 conditions) or the Rules and Regulations of ‘Chap House/Jessie House/Upper room Participants’ attached as Attachment ‘B’.” (Emphasis added.) It thus appears that the State has constructed 78 specific conditions and an unspecified number of potential additional conditions of an unspecified nature, any one of which can trip up respondent and send him back to prison. Viewed in this context, his concern with such traps for the unwary as conditions unrelated to his type of crime and conditions that prohibit conduct that is vague or undefined can be readily understood.
The purpose of conditional release is to determine whether the respondent can refrain, outside of institutional confines, from reengaging in the conduct for which he has been incarcerated or, in other words, whether he has been cured. The statute also charges the court with imposing conditions that will adequately protect the public. 725 ILCS 205/9 (West 2002). It seems to me that a necessary element in a system for fulfilling this dual purpose is the development and imposition of conditions related to a respondent’s particular crime, not a compilation of generic conditions applicable to anyone conditionally released from the Department of Corrections.
Vercolio complains specifically about conditions 13, 14, 21, 38, 39, 40 and 43. The majority declines to invalidate any but one (No. 39) of the challenged conditions.
As mentioned earlier, Vercolio was an exhibitionist — a flasher. There is no evidence that he abused alcohol or drugs, and, indeed, he denies any such conduct. Nor is there evidence that he used a home computer, camera, telephone, post office box, family pictures or children’s toys in the commission of his particular type of crime. I agree with the majority that this court is not in a position to determine what conditions are related to preventing exhibitionism. We can, however, say that some of them clearly appear to be unrelated and can remand for an additional assessment by the court focused on that particular question.
With regard to respondent’s claim of vagueness, I think there is merit in his objections. No. 21 prohibits his possession, review or use of “pornography in any fashion (written, printed stories or pictures, photographs, internet sites, telephone services, etc.)” The paragraph concludes: “This would include any materials depicting adults, adolescents, or children by the above listed means.” This appears to me to be so broad and so ambiguous that one could inadvertently violate the condition without any intent to transgress.
Paragraph 39 prohibits possession of any material that, inter alia, is “sexually stimulating” or “alludes to adult sexual activity.” Almost any book or movie available for nondeviant adult consumption on the market today would violate one or both of those proscriptions. Similarly, paragraph 40 would appear to prohibit respondent from patronizing bookstores, libraries, video stores, or other businesses that sell books and movies as part of a broader inventory — such as WalMart or Target. Finally, paragraph 43 bars possession of “contraband related to the incidence of sexual offending.” For Vercolio, the only item relating to the incidence of his sexual offending is his own sexual apparatus. One could legitimately question whether he could reasonably be expected to even know all of the items of contraband that might be comprehended within the proscription. Moreover, it is unstated and therefore unclear where “certain *** items” are actually “specified.”
Requiring further evaluation of the appropriateness of the conditions by the trial court seems quite reasonable to me since I would, for the reasons previously stated, remand the case for further consideration on the Frye issues in any event.
Conditions 2 and 51 incorporate as additional conditions the 25 rules and regulations of his residence during the term of his conditional release, bringing the total to at least 78. This does not include the requirements of the Illinois Sex Offender Registration Act (No. 49) or all other special conditions that the DOC and its parole unit may impose (No. 50).