People v. Lang

• Decision Date: 20 June 1978
• Docket Number: 78-250 cons.,No. 77-1541,77-1541
• Citation: 378 N.E.2d 1106,62 Ill. App.3d 688
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD LANG, Defendant-Appellant. — (ROBERT A. deVITO, M.D., Director, Illinois Department of Mental Health and Developmental Disabilities, Respondent-Appellant.)
• Court: United States Appellate Court of Illinois

62 Ill. App.3d 688

378 N.E.2d 1106

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD LANG, Defendant-Appellant. — (ROBERT A. deVITO, M.D., Director, Illinois Department of Mental Health and Developmental Disabilities, Respondent-Appellant.)

Nos. 77-1541, 78-250 cons.

Illinois Appellate Court — First District (2nd Division).

Opinion filed June 20, 1978.

Rehearing denied August 1, 1978.

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James J. Doherty, Public Defender, and Epstein & Kesselman, both of Chicago (Nancy M. Joslyn, Kenneth L. Fletcher, and Donald Paull, Assistant Public Defenders, and Mark B. Epstein, of counsel), for appellant Donald Lang.

William J. Scott, Attorney General, of Chicago (William J. Fitzpatrick, Assistant Attorney General, of counsel), for appellant Robert A. deVito, M.D.

Bernard Carey, State's Attorney, of Chicago (Michael E. Shabat and Timothy Szwed, Assistant State's Attorneys, of counsel), for the People.

Affirmed in part, reversed in part and vacated in part.

Mr. JUSTICE DOWNING delivered the opinion of the court:

This is yet another case affecting the deaf-mute, Donald Lang (defendant), who until quite recently was never trained to communicate in any recognized language system. (See People v. Lang (1967), 37 Ill.2d 75, 224 N.E.2d 838; People ex rel. Myers v. Briggs (1970), 46 Ill.2d 281, 263 N.E.2d 109; People v. Lang (1st Dist. 1975), 26 Ill. App.3d 648, 325 N.E.2d 305, cert. denied (1976), 423 U.S. 1070, 47 L.Ed.2d 80, 96 S.Ct. 851.) In appeal No. 77-1541, Robert A. deVito, M.D., Director of the Illinois Department of Mental Health and Developmental Disabilities (Director), appeals from the circuit court's issuance of a writ of mandamus against him. In appeal No. 78-250, defendant's attorneys (Public Defender) appeal from an order denying a petition for a writ of habeas corpus. We consolidated the cases on appeal in order to expedite a final disposition of the extensive litigation.

On July 26, 1971, defendant was indicted for murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1); and in January of 1972, he was convicted of that crime and sentenced to 14 to 25 years imprisonment. On February 14, 1975, we reversed the judgment because defendant's conviction was secured in the absence of trial procedures effectively compensating for defendant's disabilities. (26 Ill. App.3d 648, 655.) We remanded the cause with directions that defendant's fitness to stand trial be determined pursuant to section 5-2-1 of the Unified Code of Corrections (hereinafter UCC) (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-1)¹. On March 25, 1975, defendant was found unfit to stand trial and was remanded to the Illinois Department of Mental Health and Developmental Disabilities (Department) for a hearing into his need for hospitalization. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2.)² Thereafter on December 8, 1976, defendant was found not in need of mental treatment and not mentally retarded, as those terms are defined in the Mental Health Code (hereinafter MHC). Ill. Rev. Stat. 1975, ch. 91 1/2, pars. 1-11, 1-12.

In addition to finding defendant not in need of hospitalization, the court also imposed certain special conditions on bail: (1) that defendant continue in the Department's training program designed to teach him communication skills with the goal of rendering him fit to stand trial; and (2) that defendant reside in a secure setting to insure the continuity of his training and his appearance in court. The court concluded that the State had a critical interest in defendant's training and, therefore, ordered the Department to collaborate with the Public Defender in developing both an appropriate training program and an appropriate living arrangement. Pending further order of court, defendant was directed to continue his residence at the security unit at the Illinois State Psychiatric Institute (ISPI), a Department facility.

On February 18, 1977, the Department petitioned for defendant's release from ISPI on bail or recognizance. A month later the court's order requiring the Department to hold defendant was vacated and the Public Defender applied to the Department for defendant's voluntary admission. Defendant was then accepted in that status at ISPI where his temporary training in sign language continued. Between December of 1976 and October of 1977, the court conducted an extensive bail hearing in order to ascertain the necessary conditions of bail. In the course of such hearing, the parties were investigating various programs across the nation which would accept defendant in a permanent training program. Defendant's brother, Julius Lang (Conservator), also became involved in the bail hearing: initially as the conservator of defendant's estate and later as the conservator of defendant's estate and person.

In September of 1977, the Department informed the court that it had decided to discharge defendant and release him to the custody of the sheriff of Cook County. The Conservator and the Public Defender then obtained a temporary restraining order preventing such discharge. On October 3, 1977, the court issued an oral opinion dissolving the temporary restraining order. The next day the Department released defendant to the sheriff's custody and defendant was taken to the jail where he still remains. By the October 3 order (reduced to writing on October 11, 1977), the court issued a writ of mandamus against the Director, commanding him to "create and implement an adequate and humane care and treatment program for Donald Lang." The Director now appeals from the order and from an order which denied his motion to vacate, alter or amend the prior order. We granted the Director's motion for a stay of the order requiring him to develop a program.

While the Director was perfecting the appeal in 77-1541, the proceedings below continued. On October 19, 1977, the Public Defender filed a motion to quash the warrant and bar further prosecution, a petition for writ of habeas corpus, and a motion to modify the conditions of bail. On October 24, 1977, the court set defendant's bail in the amount of $50,000, which could be executed by the Conservator. The conditions of bail set forth in the orders of December 8, 1976, and October 11, 1977, were to be superseded by the condition that within 30 days of his release on bail defendant was to be placed in a training program designed to help render him fit to stand trial. Lastly, the court entered an order, later stayed, for a rule to show cause why the Director should not be held in contempt for his failure to obey the earlier order commanding him to create and implement a training program.

On November 29, 1977, the trial court denied the motions and petitions filed by the Public Defender. The court acknowledged that since the time of its denial of an earlier petition for a writ of habeas corpus, defendant had been transferred to the jail where all training had ceased. As bail had been set in an amount which the Conservator could provide, the court maintained that the only restraint upon defendant was the Conservator's "unwillingness to post bail without a suitable living arrangement." On defendant's behalf, the Public Defender now appeals in 78-250 from the court's denial of the petition for a writ of habeas corpus.

The issues presented by these appeals may be reduced to the following: (1) whether the court conducted the bail hearing properly; (2) whether the court had the authority to order the Department to retain custody of defendant; (3) whether the court had the authority to order the Director to develop and implement a training program for defendant; (4) whether the court had the authority and jurisdiction to enter a writ of mandamus against the Director and, if the court was so authorized, whether the entry of the writ was permissible upon the facts; (5) whether the court erred in denying the petition for a writ of habeas corpus; and (6) whether the court erred in refusing to dismiss the indictment against defendant.

I.

We note at the outset that the Director has challenged the method by which he was brought into the mandamus action. He contends that the court never acquired jurisdiction over him because the petition for mandatory injunction was filed by the Conservator who was not a proper party to the proceedings, and, because the petition was filed against the Governor of Illinois and the State's Attorney of Cook County, but not the Director himself. A limited chronological review of the case below is necessary to understand the court's issuance of the mandamus.

From December of 1976 to October of 1977, the court held a lengthy hearing with the object of setting the terms and conditions of defendant's release on bail. The determination of such special conditions was complicated by the unique nature of defendant's disabilities, his history of alleged violence, the conflict in the expert testimony proffered and the inability to locate a program which provided the necessary training and suitable security. Although the Department had accepted defendant as a voluntary admission to ISPI, the Department made clear that it did not believe defendant belonged in that facility. The Department's single suggestion was defendant's placement in a facility which housed mentally retarded individuals. That suggestion ignored the finding that defendant is not mentally retarded and that he becomes irritable when housed with those who are. Simultaneously, the Public Defender was investigating programs in Illinois, Wisconsin, Maryland, the District of Columbia, and Indiana, which would offer defendant both the specialized training he needs and a therapeutic living environment.

In the course of the bail hearing, on February 18, 1977, the Public Defender suggested that in order to further investigate a program with the Illinois Division of Vocational Rehabilitation, it would be advisable to have representatives of the Social Security...