mr paine's fitness for trial would be happy to entertain questions on any of the issues in the briefs if i began my argument today by telling this court that i wanted to call some witnesses maybe the president of the united states who i know personally maybe former senator carol moseley braun who i also know personally and it would probably for me or provide character evidence your honour's would have concerns about my mental if i continued on until this court that there was some significance to the victims names in this case and that those names were similar to some other individuals maybe a famous singer maybe a relative of mine and that somehow that significance for relevance to the issues before the court in a murder trial your concerns would be amplified and if i went on to say that through recollection i had recently learned that the child victim in a case with my child your honour's would question my fitness proceed in this case my client  events like that in open court on the record and his counsel raised a concern about fitness and asked the court to order a fitness about a ration on the day the trial was scheduled to begin counsel also noted that he had had difficulties communicating with this client and was question is for this for those reasons as well that even trying to review the most basic of matters his client would engage in stream of consciousness ramblings unrelated to what was at hand and i'm able to focus on the issues they need to review to prepare for trial now the state argued that defense counsel's concerns were unfounded and cited back to a prior fit this evaluation saying that mr paine was fit that he had been diagnosed with an eye social personality disorder and predicting that that disorder would cause him to do things to delay the trial and be uncooperative the court found no evidence that mr paine did not understand the charges and no evidence he could not cooperate but was simply refusing to cooperate and tonight if in this evaluation that was an abuse of discretion and that's the issue we've raised this issue to in the brief the trial and conviction of a person who's incompetent to stand trial as this court as well as a due process violation and three factors have been cited by the courts as weighing in terminating whether there is a bonafide out of fitness those facts of the rationality of the behavior of the defendants demeanor in court the any prior medical opinions regarding fitness and then defense counsel's own representations about his client's competency all three of those plans that is plainly suggest unfitness here first of all defense counsel as i noted raised the fitness concern and cited to claiming that he you know had just learned about the existence of e s p and making some complaints about something he referred to as nonintegrated jury selection no he didn't explain what that man's and i'm at a loss to explain it myself finally this defendant had previously been found on in this case in august of two thousand and there's a fitness report and it's in the record finding him just finding him unfit and citing the existence of a mood psychotic features having anti social personality disorder and a history of substance abuse also there's reference to possible two thousand and three in two thousand and five on diagnoses of unspecified poses there's a long standing history of mental health issues with this individual and those mental health issues that cause him to be found unfit on at least two prior occasions one of which was in this case again the state relies heavily on the later diagnosis later report and finding him i social and predicted that he might be a cooperate ever define it's almost like they're arguing he's forever fit that this one diagnoses and that line in that report precludes a later finding that there's a bonafide  can't possibly be that mental health is something that's fluid it's ever changing and that's clearly evident in this case where this defendant has been in and out of fitness over the years and in various criminal proceedings the case law observing this bizarre behavior by the defendant these bizarre comments in court to determine if mr paine's mental health issues at that time were such that they were attributable to the c and i so sure personality disorder he was acting willingly or if there was an actual in this issue here there's another problem with relying on this february two thousand and eleven report and the march two thousand and eleven hearing where the defendant was found restored to fitness and that is that we challenge the validity of that that this restoration proceeding as well problematic with regard to that proceeding is that the judge failed to exercise and discretion in finding the defendant that in march two thousand and eleven we've addressed that as issue one in the brief at the march hearing defense ponselle came before the courts of the parties and stipulate to the report that's the february two thousand and eleven report from th us that they would stipulate that the doctor would testify consistent with the report and would so stipulate as to a finding of fitness the state said i agree with the stipulation and the finding that was a prosecutor's comment and the judge immediately said i will make the finding based on the stipulation of the defendant is not it's the interest that's a short cut problematic is the failure to exercise discretion and there's nothing on this record that shows an affirmative exercise conclusions the rector failed to demonstrate any analysis of the expert's opinion or any discretion in finding the defendant and more know that the same thing happened here the court acted on the stipulation of the stipulated to the required testimony consistent report into a finding of fitness and a court immediately found that the court didn't make any observations of the defendant the court and talk to the defendant the court to talk to the parties to ask any the court must analyze and evaluate the basis for an expert opinion the state says the judge did not indicate you rely solely on the situation to the fine if it is but the record doesn't show the court relied on anything else the court immediately entered the  reversible air sea doesn't prove to harm us beyond a reasonable doubt the courts doubts about this to find its fitness initially were clear and evaluation was ordered he was subject to inpatient treatment for several months after being found unfit and there are ongoing concerns about fitness reflected in the record so for the reasons we've argued in the briefs and i've argued here today that's the court on the basis of the fitness issues that have been presented to reverse and reman first the fitness restoration here was sufficient a finding of fitness can be based only on a stipulation to a finding of fitness but there is more than that in this case defense counsel stated that the parties would stipulate to the doctor through force and judge never sat on the record i read this report but the judge and louis robinson are missed and none of the other cases in which the hearings have been found sufficient to the judge say on the record i have read this report he said the cases said the report of the stipulation in that the state's attorney the state's attorney said the findings in the stipulation why isn't it necessary for the trial court to say the stipulations  distinguishes it from can the written order can tornado indicated that in a potentially ambiguous situation you consider only the finding of fitness this report indicates the opposite that report was what the stipulation was viewed as the judge viewed the stipulation as manger the report that's life in order and given that the stipulation had been discussed to the poor as well as to the testimony consistent with the report in court and that the order states that as well the record does they did they did also stipulate that dr testifying conform here in conformity with the report and that's the distinction that's made in this case and in the robinson crusoe although it's a very narrow distinction e a stipulation of the fine in the fitness sense counsel and that the doctor would so testify in the robinson court still held that the hearing was sufficient because of the stipulation to the doctor's testimony as well as that stipulate to the opinion test mune the doctor as was was present in that case and it's present here as well regarding the second issue the trial just acted within his discretion in not ordering a second fitness examination the judge previously held the fitness for testing he had no difficulty understanding the legal charges and other legal matters and he was capable of assisting in his offense should the the record reflect that he often or fused here fused to come to  he did make the bizarre statements that's absolutely true but the judge had to act within his discretion in determining whether consistent with those or courts the report the statements were intended to be further destructive behavior as predicted in her overt or  or indicated further fitness concern and defense counsel had not even been on big u s c just that he was beginning to happen cern's but defense counsel also stated in that day that he had discussed numerous legal issues with the defendant that day and he also stated that defendant had been cooperative and communicative that day the court also noted that if it was cooperate if he did make it to court although he had previously refused to on many occasions and have trial defendant did comment on objections and ability to assisting in this to fans and to understand the precedings against him and the fitness is just a very narrow question of the ability to understand the proceedings against him and the ability to assist in his defense retrospective hearing would be the proper remedy because there was the report there was the stipulation to the testimony so there would be information on the mental status at that time upon which the decision could be based even though some time turns out that he was trying a stipulation to the report testimony consistent with reports but they provided detail about what that testimony would be would testify he examined the defendant and it was now said that if it was able understand it wasn't exchange with the defendant record here there's no exchange with anyone the court doesn't talk to anybody or to simply accept the simulation and find fairness the key is the exercise of discretion and that's really the substance here not with some magic language used in terms of presenting the stipulation but is there an affirmative exercise of discretion here the party stipulated to the to testimony consistent with a report and to a finding of fitness and the judge and heard a finding of this nothing more there is nothing on this record to show that the court reviewed the report and there is nothing in the case law that says a judge is presumed to come to the bench prepared having read the things that have been submitted ahead of time the standard is whether the record shows an affirmative exercise of discretion this record does not show report that that issue here was february two thousand and eleven so we're talking three years yes this is it is still fluid and here we have a leader concerns about fitness that came up till you know and this particular individual it seems a mental health has been particularly fluid and fitness has been something spend in and out of so i would i was just of course look at the specific facts of this case the east saying case talks about reverse and remand for a new