know me please the court benjamin wimmer of the state of health and his office on behalf of the defendant larry steeples this court should reverse mr steeples conviction and remain and where he fit his hearing before a newly assigned trial judge because the trial court went against the manifest weight of the other in finding that steeples was fit to stand trial and in the process abandon its role as a neutral fact finder at the fitness hearing of the relevant fitness standard in this case set forth by the u s supreme court in dusky in one nine hundred sixty in order to be a fit to stand trial defendant must among other things be able to consult with defense counsel with a reasonable degree of rational understanding now in this case then of defense counsel and without objection from the state of the trial court appointed dr marilyn march frey to examine mr an executive functioning deficit he was unable to adequately process stimuli information rather than overwhelmed with information or stimuli putting things a bit more colloquially  pre stressed this was consistent with defense counsel complaint that seat was was unable to adequately concentrate or focus when she consulted with him about the case in attempt to prepare a defense now on its face bulls you know mental impairment was not minor in significance on the clinical side of things dr fray reported that she and ministered what was called the booklet category as a three has three stages of escalating difficulty designed to assess mistress evil's information processing abilities steeples essentially flatlined at the second stage of the test responding and correctly to every sinew was presented before he became so frustrated and agitated that he refused to continue a more practical side of things in addition to defense counsel's repeated complaints that her inability to adequately communicate with steeples was hamstringing her preparation of the defense prior to trial there was evidence in open court of the difficulties that was caused by such as steeples at one point for the first time revealing the existence of potential defense witnesses for the first time in open court rather than in a privilege attorney client conversation and most obviously steeples apparently to defense counsel surprise essentially confessing to murder at the end of his set forth in greater detail in the briefs there wasn't evidence in the record here that would justify a fact finder in disregarding steeples opinion of the trial court relied chiefly on three factors in doing so first the trial court and the state both frequently construed dr praise opinion as being that steeples was not fit to stand trial because there was a risk that he would engage in angry explosive behavior in the court even if that were a basis for finding somebody unfit which without more it's not that's not an accurate reflection as dr friese opinion dr frey did say that she was concerned with the explosive behavior and steeples had you know anger issues he was not unfit because of the anger issues he had the anger issues in part because of the underlying mental deficit rendered him on fit where she sets forth a fact they suffers from an executive functioning deficit explains roughly what that is and stresses in a tell x that it's consistent with the defense counsel report that he's unable to adequately focus for and concentrate when she's attempting to consult problem able to rationally ass inconsistent with the basis of phrase opinion in large part because he wasn't looking closely at two of the steeples memory information processing ability or ability to his attorney steeples was referred to boy on the basically they said his memory was grossly intact making that you know he didn't see any problem but he wasn't looking very closely even if it were otherwise relevant it is seven years old or since fitness change over time department of corrections and appearances in court however as set forth by the only supreme court easily from two thousand to context is critical in determining whether or not a person's pertaining to this issue i mean the trial court can consider the trial court that the defendant's behavior in the court room both up through the fitness hearing and through the remainder of the case  to cooperate fully with his where well again it's not there first of all i wouldn't say it's one hundred percent you know sort of rational first of all it's just a general you know tell me your story complain about jena he's obviously very good at complaining about jena there's about thirty pages of him just going over various text messages he sent to mrs giberson which at points it's borderline incomprehensible what he's trying to say and ultimately results in him you know essentially confessing to murder which again defense counsel was appeared not to we expect even the cheapest ask him the same question twice in a row  his direct examination testimony the mere fact that he's able to go on and on basically sort of giving his story isn't an indication that he's able to you know focus on other issues that defense counsel might need to examine as part of preparing a defense knowing more information about jefferson unconnected people that she might have fought with on previous occasions which some evidence of that may have did manage to come out at trial but just the sheer length of his testimony dozens on its own supported an inference that he's able to have you know some times when he was testifying if there was an interruption because of objection trial court ruled on it that the defendant was able to pick up where that question left off as that's correct now call me crazy but isn't that indicative of a guy who is like a better way to put it not exactly out of touch with what's going on in the reality of the able to converse about a matter of importance again deep issue is not that he's completely out of touch with reality i mean there's no issue here and follow a dialogue tell the story i mean you know if kenny cooperate with this lawyer part of this should be i his dr frey in her opinion is that defendant has to be able to return to an initial subject after dealing with something else and it's not his job to respond to the objections that's defense counsel job right  that the trial judge was right i mean we know you're out there i mean they don't specifically address his ability to focus through multiple you know topics of conversation that you would expect to find in a  the finance fitness and not following what is likely counsel's advice not to make those admission on the stand so i think that point is not lost on the panel that in fact that was conduct its own independent examination or did it just rubber stamp the expert's opinion what we have here is a trial court who carefully consider all the evidence carefully considered a expert's report that proceedings again that report would not have required and evidence or hearing it could is just dismissed on that basis saying that there's no bona fide doubt that the status by this court but again defender as far as you know one of my assets little liabilities the record really doesn't show how to to my recollection how you found this mr drake and what mr drake again fact seem to be a reasonable thing and it could go either way you have the act you have the employer woman testified this guy's a nut case he couldn't get along with anybody he couldn't follow directions worth a darn i expert opinion from the other earlier expert so to say that this judge is going up on it beyond what the statute says you can do is just incorrect he's doing exactly statement he has a prior middle history is not enough to require any kind of so this is a judge to go as he sat good and then at excess of caution given the defendant  break trying to say ok this is my job it would be a violation of your rights for me to allow you to go to trial with being unfit that's why we're conducting this proceedings and the m this i think was exemplary this is exactly what the statute calls from to do we have an expert opinion that doesn't say he cannot assist his attorney we have  the investigator and the defense counsel say this guy's hard to work with i had to talk with him five hours about this one report we have the investigators said that he he was all over the place but he gave me names of people who investigate his conduct all the hearings both before and after and in people versus lucas which sat in my brief that that's the case that says you can consider the defendant's testimony at trial in determining whether explanation to the attorneys when they or his supplemental report which is says he can become fit with medication approved that will prevent outbursts and trial so the experts concerned was not that he cannot cooperate excess assist his attorney preparing for trial is that this guy's going to blow up in court and that is simply not the standard for unfitness so th not required to accept that opinion nor was he required to draw the implications suggested by defense just because he's been problems he's therefore going to have problems working  yes there were problems but given the the us attorney state was at that fitness hearing but if you look over the whole course of the case there were five or six hear can and could cooperate with this is turning his conversations with the expert what he has trouble on memory tests he told the expert his criminal history while he was in jail have total amnesia about everything you're not fit for trial because you simply cannot assist your jury here we have a guy whose memory regarding events there's a status biased statement expert is worth and there was no error in receiving that the fact that this defendant has the wherewithal to plan a p t s d defense shows that he is mean like i said the judge didn't try just enough but if we ration from it but it was if from ation properly before and that should be determined for what it's worth and he said it wasn't worth much but again you take all the evidence it was for the judge you have the defendant's conduct in this case you have this conduct in in the other cases that the trial judge takes notice of with the agreement of defense counsel you have this expert test expert who says he's unfit because he's a danger of disrupting the proceedings he doesn't say he's on because  and then you have to defend it after that appearing in many subsequent hearings before trial again showing he cyst and then he tells the fact that self and it is the defense is absolutely right to testify and counsel cannot stop it if you want to i mean there's the council have no choice if the guy's in system going to unique because the stache also gives the judge the affirmative duty to determine for himself if he the defendant is unfit he also has a duty to raise the he told me he doesn't rely upon information outside the record this nobody else knows about he puts it all on the table for the parties to consider the same time you know to object ok  this you should not be considering this you should be considering he gave the parties chance to object or to respond and with most of it most of it on the  look at ok he's in trial on three different cases how is he behaving in those other two cases if he is a model defendant doing everything he supposed to in those two cases trial would be go back for a new fitness hearing rather than the new trial if this court finds that the judge overstepped his bounds here but i don't think this is a case where the court was prejudice  or that he had pre determined that the defense was fit rocket was simply trying to do his duty of making sure that this guy was fit in face of a state an expert who never ever you know have amnesia like that but dr fray never a pine that he had any problem with his most memory it was his memory with interference that was the issue of his ability to deal with one subject transition to another subject and maintain focus and concentration appropriately throughout those changes secondly again just briefly on the first issue posing counsel you know notes at points that you know behavior people's behavior in the courtroom wasn't sufficient on its own to demonstrate you know on fitness or stand trial that's you know people who are fit to stand trial can behave as he does in the court room it's important to remember that this is against the background the only psychiatric opinion in this case being that he's not fit to stand trial the question isn't whether the his behavior in the courtroom shows he's unfit it's whether a provides a basis for rejecting the only expert opinion that was presented at the fitness hearing moving on to the second claim the issue here is not whether or not the trial court improperly presented evidence outside of  statutory procedures like that regardless of whether or not the court is obeying you know proper rules for presentation of evidence which always under noise i'm sorry supreme court rule six examination it stated it was erring on the side of caution it didn't believe that you know it needed to and if that point was clear didn't think that there was a you know a bonafide issue that would have required a fitness hearing or indeed required council what's important for present purposes is what the court says when it begins the hearing it changes to a slight degree what it's saying about its prior observations in the now says his appointment afraid quote it wasn't based upon any observations actually it was contrary to the observations of the court the doctor reports doctor phrase report the findings in of itself that he wasn't fit medication i believe that to protect mr sheeple you process right and you hear all the evidence and you to review transcripts he's had his ability to get along unquote now it's entirely fine and indeed probably unavoidable for the trial court to be surprised if he gets back an opinion that's the defendant's not fish when he initially disappointed you know somebody out in the bunch of caution furthermore as your honor knows previously it's entirely appropriate for the trial court to rely on his own observations of the defendant in determining whether or not he is fed and if those observations were in fact contrary to dr phrase report of an entirely consistent with the due process clause for the trial court to open the hearing receive dr praise opinion if the parties didn't even want to present more evidence simply find him fit reject dr praises and you know on the basis of his own observations the problem here is that the trial court rather than just relying on its own observations begins the hearing by saying that you know basically i think dr perry is wrong because of what i've seen and then presenting a large volume of evidence he's investigated himself essentially to back up his own explanation that a couple i don't believe so you're up in that case i mean obviously any time the courts you know essentially solicits additional evidence things can get a little trouble but in that case you're all actively sort of leaving things up to the parties playing you know what you believe potential issues are and ultimately you know