books you may proceed counsel please the court counsel my name is zachary rosen from the office of the state a public defender and i represent mr chad so chad statutory and house traditional rights were violated when at the sentencing hearing the trial attitude toward the introduction you have and where the fitness report will probably be part of the pre sentence investigation which is open to the court unless ordered closed is open to the public honor i think that this court can turn to people being nicholas for guidance on exactly intersections between state law section one hundred four dash fourteen the fifth amendment protecting rights and when statements and information gathered from mental fitness examinations can come in at trial or at sentencing this court can not only look at nyquist but can look at other illinois case law from the supreme court in people  chance argument stands on he raises it under section one hundred four fourteen a statute and when we can use these statements it talks about the use of these statements only when an affirmative insanity defense is raised or an affirmative defense of intoxication information relied on from the mental fitness examination was not in the pre sentencing information report and that includes the opinions and conclusions that the doctor reached such that had continues to engage in bubblicious  toward the police and in the community the doctor cops had a tyrant said he was on a reign of terror the doctors comments were about future dangerousness and future dangerousness is fine for the court to consider if it came in only under th yes which means try yes many of the cases i cited involved murders involved a jury considering exactly what you're talking about where this statute it's very important to protect the fundamental rights of to defend it and while we are  looking at criminal trespass and disorderly conduct here it's clear that the court did rely on this information and it's important that the court read specifically from the report it's very clear here in this case that the court did rely on a report and didn't just consider it in passing but the court relied on it specifically in reading two pages and when this court is unable to determine the weight given to the improperly considered fact or the mental fitness examination admits to history of drug abuse and a failure to be successful in rehabilitation the trial court would be able to take their into account in deciding whether or not to give impact probation or or the length of the sentence or consider that in terms of the quality of the likelihood that rehabilitation was available to that decision if the court relied only on the p s i i and there was not a mental fitness exam we're not talking a that child must have been a randomized at the time of the examination chad was still in custody and the fifth amendment is all about compulsion if chad didn't know that his statements could be used against him potentially to convict him in a trial although that's not the case here protections are only there what's the logic behind that well it's a good kind of arm of the state is examining this guy and telling the judge about his history and a lot of the stuff in there could law i think we have to look at the time in which these examinations occur the p s i i always occurs after conviction in this case there was a question of chad's mental fit so that's why the examination was requested by fence attorney ordered by the court and in that instance chad needed to know whether or not his statements could be used at trial to convict him or whether his statements could be useful when it could be used to exonerate him correct or to prevent him from even being prosecuted yes he should  well i think we need to look at the case law for the interpretation i i understand i'm asking you if the statute tells us anything about where it came from it came from the mental fitness examination when chatham walked into that examination he was still in custody and he thought that the purpose of that examination was to determine whether or not he is fit for a pretrial hearing fifty trial or not fit for a trial he had it's unreasonable to think that he walked into that meeting knowing that his statements may be used at trial or maybe used at sentencing without advisement from the court without subject sta for fourteen all what course of the proceedings in a criminal case this is all i know it covers as a blanket protection for all of the proceedings at any point after a defendant meets with the psychiatr at that point all of those statements all of the information gathered during that meeting are barred are kept out of the trial kept out of sentencing used only for the purpose of fitness and the only reason a court can consider that evidence at trial or sentencing is if one of the triggers is met is if the affirmative insanity defense is raised then why would they put it only in the statutes that applied to the criminal trial  well for fourteen falls then chapter seven twenty five in a series of statutes that relate to the trial itself i think that if the legislature intended for this to really only to the trial phase they would have said so and so you're basing it on the fact that the actual statute says is shall not be admissible and is the defendant exactly and say it does not impose a certain smith and says the very same thing that fifth amendment protections they attach throughout the entire process they attach after arrest throughout trial and into sentencing and this state statute is a way attorney raises a question if it is he's doing so because the due process commands that we cannot convict people that are not fit so we must answer this question first the state statute protects the process that the defendant must you know little bit different but if the defendant raises what's noted in the statute it comes in then the court considered yes if the affirmative defense is rape and in many of the cases that are relevant for this court to consider  you talk about the unfortunate circumstances of your client's life as a youngster when the stresses or pressures the use and or those kinds of things are new piazon and you use them in an attempt to mitigate and yet you know about those are you know about them more expansive because of the zoom range there are certain cases that found when the defense raises the medical examination information from that examination first that then that's opening the door in this case that's not what happened the state to do first and as mitigation defense counsel responded now in a perfect world defense counsel would have objected and then been no for the report it may have been strategy and we will never know but even if it were strategy it was strategy it was a strategy decision that you turn he was not allowed to make bard by state statute and protected by the fifth amendment this right is about testifying in a sense chad williams testified against himself to increase punishment a defendant's decision to testify in his own trial or at sentencing allocution is the defendant's decision alone and so these are state rights and constitutional rights that belong to the defended no matter what the attorney does that attorney cannot take those rights away it is the defendant's choice to testify it's the defendant's choice to waive a jury and the right scott of fide in state law here are protected from the fifth amendment as well our rights belonging only to the defendant so it was wrong for the attorney to continue arguing in mitigation about the report and it's again it's not about the substance of what was said although that is objectionable that's what the prejudice cause it's about the blanket protection that statute the fifth amendment provides the statute makes very clear about when this information can come in the fifth amendment is nowhere near as clear as a statute because it's rooted in case law but it's all about compulsion and about the fundamental fairness that the defendant must enjoy when speaking to a requests yes yes he did he did request it but without being told that his statements could be used to just oh no your honor with respect i don't think he wants the there does not meet the requirements under miranda it because it says it's explained at the outset to chad that the examination did not constitute a doctor patient relationship in the usual sense and that the findings and opinions would be included in a report that would be made statute neither of those things happen here and i deal we defense counsel would have objected would have objected in a post trial motion that didn't happen here so the claim is certainly forfeited but this court can't get these of as an aside i'm wondering i don't really understand what the defendant requesting it but that has to do with anything because it's about whether or not they raise  defenses it's not about who requested exactly your op and that's exactly what happened in people the necklace it's only a second district case but in that case the defense requested the psychiatric examination just as chad's attorney did here that court appointed the attorney it was a court order just as it was here but in nicholas the state called the psychologist at sentencing to testify in person now here the state didn't call the psychiatry as they only read from the report the state did so and the court read two pages from the report so in it was the defendant released had an opportunity to cross examine but nonetheless regardless it's still a violation of the rights protected under state statute and the fifth amendment and one it was close to balance because the court only consider a similar number of aggravating and mitigating factors the court did fail to consider certain mitigating factors well and that brings us to fundamental fairness of course we have people the davis for the standard that the use of defendant's own statements is aggravation in a sentencing hearing affects such of substantial rights that if would require a reversal and it's error here under state law and under constitutional law this court will not be stepping out on a limb because they can turn and look for guidance and people be nicholas people be such people be cashing in wheat from the state of illinois and of course turn to the fundamental case study smith that's where the fifth amendment protections come in and so because chad's rights were violated under state law and under fifty members all he asks for this remedy the remedy you agree ma'am for a new sentencing hearing where this is objectionable information will not be admitted because that  what you do a trial versus sentencing it's an interesting point your honor if you'd like me to expand on it supplemental briefing i'm happy to but i think we just have to look at the cases that have  look at the drafting language from the legislature they meant for it to be limited to the trial or to sentencing or even before trial pretrial they would have said so they should have said so they did it thank you counsel you have time  distinguishable in that case dealt with testimony of the sight of a psychologist that was presented at the sentencing hearing and the defendant's objection was overruled so that was a case where the defendant did claim an evidentiary privilege based on the statute section one of four dash fourteen and that claim was overall here of the defendant did not presumably for tactical reasons invoke any sort of evidentiary privilege based on the statute or based on his fifth amendment privilege against self incrimination and when the defendant's counsel argues based on the fitness reports at sensing hearing the defect the facts that the defendant has post traumatic stress against the defendant ok so is it reasonable to conclude that they're saying you can't use it against him but that doesn't necessarily preclude his counsel from raising issues that would be mitigating i understand your question essentially the defense is allowed to present the fitness report if it chooses to do so for example at trial it could do so if it wants to that's not if if it wants to however i think if one see has it made it and the report into evidence either in trial or sensing hearing that opens it up it makes it fair game for use by the prosecution so you cannot just admit part of the report in his favor and then sort of protect himself from having it being used against him you can't have it both ways you can't invoke the evidence your privilege is a shield and then use it as a sword yes as a ways i think that would be fair and that's not what statute intense now course that didn't happen here do you agree it wasn't made it the court just took it upon itself to read from and was admitted at the hearing i'm trying to understand if it was in the criminal record think and that my own recollection is that the trucker i think maybe at the outset of the hearing said that it would be considering the report if that's true then it may not have been like offered in evidence like a test or the psychologist but the defense is not objecting at that point and the defense takes advantage of that by arguing from the fitness reports factors in mitigation based on the  what is your position with respect to the question of whether or not the defendant raise the defense of insanity or the defense of drug or intoxicated condition did the defendant do that in this case no no and the state's position is the statute only applies to trials not to the the sensing hearing and states arguments based on similar statutory privilege that's contained in section one fifteen dash six which applies for exams and preparation for the use of the of an insanity defense and a case of salafi which was the only supreme court decided that that statutory privilege where it says shall not be they said it doesn't apply that far this time by the sensing hearings and so it's not clear r v s here despite his citation to nicholas that this is something that even applies to sensing hearing and in any event nicholas is not clear error in this case if the defendant never in folkston evidentiary privilege and so that is why he's not that heard and essentially also i think one question is whether the defend against so self incrimination does extend into the sentencing process however the privilege is something that has to be invoked by the defendant so if the defendant is asked of as to cooperate with pre sentence investigation for example and refuses to do so fourteen require warnings in other words without miranda warnings that cannot be used against him that is his argument but he hasn't met his plane their burden of showing clear obvious error the fact that he was not given miranda examination statements were used against them in either cross examination or impeachment of their trial testimony so therefore they do fall inside a new cash new very directly within the the evidentiary privilege of section one for dash fourteen brooks argues that we have not met the plan or standard that there is not a clear error here and i believe she's wrong because the rights that were violated here under state law on the fifth amendment are fundamental rights knowledge and chad as it without any knowledge to chad that that could happen that's where the fundamental error occurred now the state tries to analogize the statute issue here one of four dash fourteen to the statute at issue in salafi one fifteen six the state says they're the same and one fifteen says you could use it at sentencing but it clearly doesn't one fifteen dash six talk specifically about when a defendant raises the affirmative defense of insanity so one fifteenth at six agrees with all of the protections that protected chap but does not apply in chad's case because he never raises affirmative defenses so looking to cases like  would be a misstep for this court because chad did not raise those affirmative defenses furthermore ins is a liar why should we look at those well because what happened in a cell and what happened in people being nick lost is the exact same thing that happened here we're still using capital case it was used to trial and the supreme court specifically soon we're not holding this is anything to the defendant in the study smith and the differ and that nicholas didn't win because of the objection they won because the blanket protections of the statute in the fifth amendment were violated the objection is only an argument about plain error and if we look at the support from the court and people be maggio it says that we don't know whether if we can determine whether or not the court relied on that improper factor then we must for man for a new sentencing hearing now that only makes sense if you agree with me that it's an improper factor under state law or under the fifth amendment i don't think you have to agree with me on both fronts although i think it's clear that it is a violation of both fifth amendment state law i think you could pick one and move forward in remand on that alone so explicitly how you put this issue raising that affirmative insanity defense and because that didn't happen here the statute and the fifth amendment should have protected chad but did it was error in this case it was fundamental error because just a clear violation of the protections of state statute fifth amendment and for those reasons chad should satisfy the plain error standard under prong two here and for that reason this court should remedy for a sentencing hearing and if there are no other further questions from your honour's i would conclude in ask that you grant that to chad thank you thank