discretion in finding fit to stand trial this court should reverse that judgment however because the circuit court committed nowhere much less play marriage you have to remember that the defendant in illinois presumed fit to stand trial  proceedings in front of judge shows and help i'm proud to her name correctly were not a fitness hearing but instead just a status on the return of the witness report so during that august t pretrial one week before the defendant scheduled jury trial defense counsel come before the court and said your honor you know my client last night he announced to me for the st time that he had a prior mental health issue that's resurface he seems fine we've been communicating fine any differences or difficulties seem to be more a matter of his education than anything else but i'd really like to get a fitness hearing basically i'm not an expert i can't top a looking at him going to get a fitness hearing the state didn't object and the court filed a report before this court and that the expert finds there's no reason to believe that mike findings unfit in any way to stand trial so please can we set this for her here and so the record simply shows there was a bonafide out t in the court was not required to induct a fitness hearing at all so that september proceeding were not a fitness hearing at all in this case therefore resembles hanson is almost all course with hansen was the judge is allowed to for that reason the circuit judge committed nowhere at all because of september for seedings were not if it means terry had no obligation to make a determination on news or exercise or independent discretion in that respect if the court even if the court disagrees with us on the fitness question however this court to use this opportunity to remind the appellate that retrospective fitness hearings are not impermissible simply because two years have passed or even the defendant's fitness is his behalf and he gave a statement no q should at sentencing so there is sufficient record here to determine that the defendant is fit to stand trial for these reasons it's a proper remedy is a retrospective fitness we think the record is sufficient to make that determination but even if it weren't the remedy is that if the circuit court were to find out that it weren't sufficient the remedy would be to order a new trial at that point the point is that there's fisher new trial and we are asking your honour's affirm that decision today the state for the very st time in this court has argued that mr brown was not entitled to a fitness hearing at all because judge jury never made an express finding of a bona fide doubt but the state has forfeited and wait this argument for a defendant to be entitled to if it is hearing there must be a bona fide doubt as to his fitness in the appellate court mr brown argued that the fitness hearing to which he was untitled was deficient in response the state argued that the hearing was not deficient the state never challenge bronzing title meant to a fitness hearing and feeling to challenge this disagrees and does not hold the state to its concession that the record establishes a bona fide doubt here  specifically this case is actually distinguishable from people be hanson and what makes it so is that hansen said you know absent other evidence this court's not going to assume that the judge's granting a request a fitness evaluation equates to a judge's finding of bona fide doubt but here there is other evidence specifically brown mr brown was hearing voices and he was having trouble communicating with coun of these indicate a potential inability to participate in his defense and hugh what's also important here is that he was hearing voices despite apparently being on medication for his for his mental problems and i'm going to disagree with a point that opposing counsel made and that is that this was not the st time that counsel had learned that mr brown had a mental a diagnosed mental illness but it was the st time that mr brown had communicated to him that that mental illness was interfering with his ability to communicate with counsel and again the fact that mr brown had mentioned his mental health problems before and counsel did not bring it to the attention of the court suggests that something was different this time and again this happen very shortly before trial it was eight days before trial and defense counsel was ready to proceed and judge corey was the one who moved it off of the trial calendar which would have been unnecessary it took her himself did not have a bonafide doubt and part of what makes this case difficult is that the parties here kind of conflated asking for it at this evaluation and a fitness hearing itself and that's clear in the language that counsel use when speaking to the court he asked for a determination that the defendant was fit which can only be made at a fitness hearing and again judge corey granted that request and so the imprecision in the language here doesn't mean that no bonafide out was found especially because the surrounding circumstances indicate that there was a bona fide doubt and that mr brown was entitled to a full fitness hearing and again this is a threshold issue and that is why the state's implicitly waived it because they didn't argue in the now for the nd part of our human judge whose didn't exercise and any independent judicial discretion here in the king if in his determination judges must be active and not passive and judge who's here was entirely passive and it's really important to note here that this was the st and only time that judge who's had seen had seen mr brown she only presided over the case for this one day and so she didn't have any outside data or information to go beyond this report which it's not even clear that she actually bred she asked no question no questions of brown and offered no discussion of the report itself or of the doctor's opinion and again this was the only time that she had presided over the case she had no experience with mr brown of her own yes and i think that that is problematic here defense counsel defense counsel definitely dropped the ball in some respects because as i highlight my brief this wasn't it wasn't as unequivocal as defense counsel made it seem to the court there are questions  in this report and there are persons of it that are a little bit vague and ambiguous and again that also speaks to i believe that that supports the conclusion that judges didn't actually read the report is some conflation in between what we're i guess lack of clarity as to what their obligations actually are and i know that the statute has these two different provisions but that doesn't seem to be the way that it operates in in the court that there is this conflation of these of these two sections and again defense counsel when he asked in the st place he asked her a determination of the defendant's fitness the law says that that has to be a judicial determination and whether or not counsel misunderstood what the obligations were it doesn't matter that the judge should have understood what her obligations were so they need time counsel not necessarily i'm saying in in this specific context where defense counsel gives specific facts that are temporarily related to what is happening immediately that that is something that's another way that hanssen is what happened here and there's also the scenario in which the judge says i don't know that that that bonafide out threshold has actually been that so you know i'm going to order an evaluation and we'll go from there and back the judge also didn't say here well i don't agree that there is a bonafide doubt but i'm going to order an evaluation to see if we can move forward the judge didn't say that either so the judge has some i believe yes it would be the best practice is for the judge to say again point to a proceeding under section  there really are two different examinations here if under the sections section to correct and again in the report says that this is that the report was ordered to make a determination as to whether or discretion because judge whose didn't have anything except the report itself and the law says that judges have to be active not passive they can't simply rely on a stipulation  as to the report's conclusions which is which is absolutely precisely what happened here and again to counsel's point about sending it back for a retrospective hearing because we have this report well ye the report was the only evidence offered at this hearing but it wasn't the only evidence available at that time and the other evidence and what i mean by that is are things like mr brown's response to questions the lack of questioning here by the judge even of defense counsel is is lost information brown's answers to the those questions could have given the judge waiting for the report that's all that's before the drugstore if this was an effective fitness hearing the only thing before the judge of that time was report i understand what you're saying and also the judge has a responsibility an obligation and an all that is considered is the report and my point is that there is there was information fitness the question of fitness can be fluid and that information can't be wrapped again recreated there are all sorts of nonverbal things that could have indicated that me perhaps mr brown didn't actually understand what was happening or would have had difficulty communicating with counsel for instance in the report it's dr who recommended  that council provide education and reminders but the report itself didn't explain whether or not understanding of the proceedings was dependent on these education reminders defense counsel is never asked whether having to provide these periodic reminders and education would interfere with his ability to represent the defendant and again that leaves open the question so if you i these reminders and education is needed and that does interfere with the friend's houses ability to represent the defendant then that means that there is the defendant's ability to participate in his o defense is affected and these are again are questions that are left open the report itself doesn't say whether or not you know the voices would have continued throughout trial and whether or not that would have affected  ability to communicate with counsel there are all sorts of questions here that are left open and it's not as if this is it's not as if it's a psychotropic medication case and again that the this court has never found that we're  defending it is constitutionally entitled to a fitness hearing that a retrospective hearing is an adequate remedy and your honor should decline to find that in this case the remedy of a retrospective hearing arose out of this in regards to the statute that said where defendant is receiving psychotropic medication under medical direction he or she is entitled to a hearing on that issue if it while under the medication early on court didn't make a distinction between the failure to hold if it is hearing in a medication case because the defendant was on medication and the failure to hold a fitness hearing because there had been a finding of bona fide doubt and is in essence this court equated the ingestion of psychotropic medication to a fine to a bona fide doubt as to fitness but in people versus burgess this court changed course and carved out a limited exception for retrospect hearings where the issue was the defendant's ingestion of psychotropic medication and i think it's also important to note that in the cases where this court has discussed retrospective hearings it's never been as a remedy those hearings have already happened as a result of the case being sent back and again the reasoning in the psychotropic medication cases is that there is no due process right if there's no finding of bona fide to right so but where there's a bonafide doubt is the defendant's fitness it means that the defendant is potentially unfit and so the failure to have an adequate hearing is the violation of due process because it means a defendant is proceeding to trial when he or she is potentially unfit and it is that potential that isn't enough to require a new trial now opposing counsel and her response  cited you know the language from people v mitchell and the cases including people v cook that the state cites and in support also quotes this language that retrospective hearings are now the norm but that language has been taken out of context and it's clear when with i don't know inextricably intertwined i believe it's a threshold issue absolutely and again that supports why this court should hold the state to its waiver because the state below agreed that the threshold had already been met it never challenge that the threshold was never met it's a threshold issue and again it's precisely why the state should be held to their waiver and again in medication cases the reason why a retrospective hearing is adequate that's important because in those cases there's a single there's one single easily answered inquiry and that's whe and that is the effect of the medication on the defendant's mind mental functioning the nature of the proof in those cases is constant and by nature of the proof i mean the chemical properties of the medication and the defendant's medical history and that's not the case here if it is like i said the fitness evaluation wasn't the only information available especially because the question of fitness can be fluid the report itself was unreliable on its face and it left questions open again it didn't explain whether brown salusa nations would continue during trial or explain how they would impact his ability to work with his attorney and all of these last questions it's all lost information that can't be replicated at a retrospect hearing especially here where the defendant has documented memory problems additionally the run that he ever retrospective hearing places an additional burden on the defendant to prove due process by elation i sense forcing the defendant to prove that violation twice the error here was a trial with a potentially unfit defendant and that's not something that a retrospective hearing can remedy the only remedy is a new trial reading of this record reveals that there simply was no bona fide determination and therefore as of september proceeding simply were not if it was here nor should they have been construed as such i'm for the reasons i gave in my answer to justice burke's earlier question case is just like hansen as it would be odd indeed for the court to enforce a poor picture and come out a different way on facts that are virtually the same stance finish question asked whether he can understand the nature of the proceedings and whether he can consult with counsel in his defense and so one can be mentally ill in many different ways and still be fit to stand trial so the mere fact th counsel was right so you know upon hearing news to request a fitness evaluation determine whether there was a phone typed out but when it came back thirty days later and the expert said there was no reason to believe that he was unfit and coun stipulated to as opposed to just oh the stipulation ok so yes so we believe against paris reading is that that that's a temper proceeding was not a fitness evaluation but we do and i called to make an alternative argument that size or independent discretion for example in the same order it says fitness report received party stipulate to the contents of the report the contents again not to the expert's opinion is also contemporaneous evidence in the record when  it comes back to this is on page eighteen of our panics in the courts as ok well the chording knowledge is received as the report with the findings contained therein and acknowledged a stipulation that if called to testify the doctor would testify consistent its report and so we think that all other information let's gets contacts in that the appellate majority below urging relying on that one distinct portion of the written record in finding that the judge did not exercise that discussion  finally as to remedy many of these retrospective fitness issues came out in these medication cases simply because way the statute was written at the time there was some question for a retrospective fitness evaluation of retrospective fitness hearing i'm sorry fifteen years after the depends trial the question again is whether we can make a fair determination based on record based on the record evidence and here we have a very good idea the federal courts also play the same standard i point out that this is not something that's new question is always whether we can make a fair assessment of the defend his dependence fitness at the time of trial but decided several