shortcomings of the two thousand and thirteen restoration hearing the problem acquired additional dimension when we consider that dr coleman qualified his opinion by stating that mr mackintosh only marginally demonstrated an ability to choose among his legal options and to struggle with making decisions answering questions and remaining a troll well except that the trial judge who is sensitive to having been reversed may any number of comments or explanations say i've dealt with the sca he's before me in court i've had the opportunity to visit with i've had an opportunity to evaluate him and his response my answers have been understandable articulate so then is he actually relying upon that psychiatric opinion of loan or that definition or his findings included concerns about mr macintoshes ability to make decisions to answer questions and to stay focused and be in control he provided numerous examples that fall within those three categories so by adopting dr coleman's findings as part of the trial court's finding even though it made statements regarding other observations that it had made it didn't reject dr coleman's findings and conclusions that found mr mackintosh essentially be marginally and that if it was going to make a valid finding a fitness and say that it did not find that those things were present in mr mackintoshes courtroom behavior of his other observations that maybe would have been adequate but in this case to make a valid binding up that mess the trial court that essentially only buying him fit for cross examination mr mackintosh wasn't able to answer all the questions regarding court functioning the proponent didn't provide an explanation as to what it was that mr macintosh did not understand we don't know understand his rights the consequences of the plea his ability to assist in his defense the b s a personality tests had to be administered verbal because mr mackintosh with unable to stay focused and even with that altered patient he still had to be directed to remain on topic dr coleman diagnosed mr mackintosh of suffering from depression anxiety with paranoid obsessive compulsive features p t s d bipolar anti social personality disorder and identified some substance abuse problems concerns come to fruition in the year that followed the evaluation were guarding mr macintosh's or dr coleman's concern this meant that mr mackintosh would have trouble making decisions trial court observed mr mackintosh make a spur of the moment decision to waive his right to a jury trial while making a flippant comment about wasting taxpayer money regarding mr mackintoshes ability to answer questions that was identified by dr pohlmann mr mackintoshes answers to open it to questions while he testifying he really had trouble focusing on what was being asked of him and that was part of the reason for those non responsive answers there was a blues hearing regarding some comments that mr mackintosh had made during the p s i a the trial court determined that he needed to be shackled to further proceedings after the hearing at sentencing mr mackintosh made a rambling and unfocused statement an allocution during which is paranoia was evident and he was seemingly unable to remain in control and when he became increasingly agitated he was forcibly removed from that period before he had even been sentenced because the trial court adopted that performance finding that mr mackintosh was only marginally fit because there is no such thing as marginal fitness mr mackintosh has yet to be found that a qualified finding of marginal fitness does not constitute the level of confidence that you process requires and because mr mackintosh was convicted and sentenced while he remained on that he should be granted a new trial if there are no further questions regarding the issue we here was unaware of the law in fact he commented on this course opinion saying slapping him down for not having phone seizures the first time saying we meant to do it that way i guess we didn't do it competent comment that was made by her that apparently comes from the doctor and we commented on that a reference to the marginal could have been appropriate but i don't think the fact that he doesn't like the single word out of the doctor's opinion to say ok because he finds it marginally and fit the doctor's fun to be unfit if you read the doctor's  a report as a whole and not just that one word marginal it's clear that the doctor found that despite some problems that if it might have he was in fact fit for trial the doctor's report noted that the earlier finding one fitness was not due to the defense flack of understanding the procedures but due to the thinness inability refusal to cooperate with this then attorney when the trial court refused to dismiss the charges on the basis the defendant's conversation with the court regarding the waiver of trial of jury trial showed that he was well touch i suggest that if you look at the content of what his conversation with the judge is it is clear that he is aware of the seams and can assist his attorney while there mention do you agree with observation of the defendant i find that the defendant is fit for trial i don't know that that is a quote unquote adoption of the of every single word in the doctor's report so you can't divorce the one from the other which which is what defend it seems to be trying to do the same you have to focus solely on that one word marshall and some of the problems that the doctor two because despite the difficulties the doctor had he was able to conduct the tests and was able to draw conclusions based on those tests regarding the  the defendant is not the same person he was at the time of that prior hearing to the defendant who's conduct a trial wall not directly addressing questions sometimes and at the sentencing hearing being had a better way of determining hey is this guy just being a jerk being unwilling to help being unwilling to cooperate or is this truly a case where the defendant is unable  cooperate unable cysts and i think that in this case the most that could be said of the defendant is that it time she was unwilling to cooperate with that his counsel are willing to abide by the course process but that is not the standard for fitness observations of his own with certainly entitled to do with the evidence presented was the concerning evaluation of race in the issues about mr mackintosh being able to answer questions and support to be able to communicate with his attorney someone who can ask questions and answer questions effectively assess their attorney and so based on tips and galen our position is that further inquiry was required that there are three things a court can do when presented with a stipulation according to lewis and one of them determine whether or not those finding the doctor in those reports had manifested in a concerning way or if things had worked out in an acceptable way additionally mr mackintosh being aware of what was going on in the courtroom and understanding the proceedings isn't the only part of fitness the other part of fitness is being able to assist counsel there is no valid finding and no valid evidence presented that that issue that