asking this court to uphold two vital principles of law one of which is well if some of the other is supported by the elementary precept that quirks should act consistently with their own findings specifically the first principle is that we're a defendant's fitness to stand trial is that issue a court may not find a defendant fit by simply adopting the conclusion well it should have at least put something on the record to indicate that it had observed mr thomas that day it may have asked some follow up questions it may well if if this psychologist had appeared in person one pertinent question to have been asked is did you personally examine mr thomas and based on the  i can't remember the guillen case yes the killing case that is relevant because what she said in a report the summary report was well the treatment team found that he had passed certain t well what does that mean who's the treatment team i've made out of include her if it had been as in guilin where there was a licensed clinical social worker i added that opinion would not have been what your attorney does in the courtroom it could have been at least a few things feeling that it was not simply literally rubber stamping the psychologist's opinion is a matter of fact it didn't even say that it had read the report now i agree with your honor that ok presumably the the judge did that but he didn't even go that far he just said this will be the finding of the court that the that was on a different time it was in a different date and in fact we really have quite a long history one of the other things that i think is not not the central issue but maybe should concern us is the for your gap in time between this finding of the court and the actual trial and in between there were a number of other things that occurred to a psychologist or psychiatrist to found that that he didn't understand his d ask him to repeat back not just ask him yes no questions do you understand what's going on but ask repeat back and describe it as off words what's going on which the court did and that's my second issue the court actually adopted that the state agreed that was a good idea defense and the court all agreed this was a good idea an unnecessary idea and yet the court didn't actually do it which is another extraordinary circumstance about this case i  don't think that that really adds much to this court's lack of confidence and by the way we're we are doing is sending over a review under this under the under the law i don't think that that can  real confidence to the very important due process concern that the person found guilty in this case was really capable of assisting his own counsel and really understood what was going on in light of all of these circumstances just cracking back briefly to the first argument that you know there has to be at least some affirmation on the record that the court and i think this goes to your question of bit further justice golden heard if you know if the court even made a statement that you know i've not i've not only read the report i have considered it and combining that with my own observations the defendant i find if he'd even if the court even done that much i think that probably would have satisfied the standard but he didn't do that much idjit in fact even the ruling he had the court did make was somewhat ambiguous and it just said that will be the the only case that was the outlier case was the shot case out the fourth and yet the fourth district came around a year later in the killing case and said well we're following up didn't express legal rule saw and i pointed out in reply brief how you can reconcile shot couple of ways you can do that but many of men it's clearly sticks out like a sore thumb and they jurisprudence here it doesn't go along with the rest of it forty kind of spoken to the second issue where you know if you look at all these facts basically the best case you can make is well maybe he was borderline fit you know because he was found unfit then he was found fit based on th a quarter page summary and we have all these other factors the miranda ruling the guilty but not mentally ill ruling and so clearly the at the party suggested in the court agreeing just to be on the safe side when assured that he is fed up we have to follow these protocols one being to try to simplify terms and i'm not relying on that the court can judge on its own whether or not the the court really did that i think it's pretty clear really didn't grant that's a little problematic how do you simplify it you know every single thing that when you have like an expert arsonist testifying but but still it should have done more with that to of i will of a reserve rest  your honour's counsel may it please the court kelly stacey appearing on behalf of the people on the case law concerning stipulations and fitness cases turns on whether there was a stipulation to the fact of fitness or a stipulation as to what that opinion testimony would be which oftentimes relies on reports of a psychologist or psychiatrist of the people shocking case that mr whitney referred to was the case cited by the state and in people versus shark the fourth district reviewed the cases that were cited by the parties in this case and the shah stipulation is very similar to the stipulation that we have in this case the psychologist report was the only evidence offered by the parties and the shock court found it was proper for the trial court to accept the stipulation of the parties concerning what the expert who testified as well as his conclusion that the defendant was fit so i think there's a clear distinction in the case law is the judge just saying all the psychologists family this person fit so is fit or is the judge saying it based on the stipulation of the parties that this person would be called as an expert he's an expert in the field of clinical psychology and his determination to use the person is fit for trial based upon that we accept the stipulation of the parties and the court finds the person is now  it's a it's a so the stinks and i think that's why in the shocking he's just a starving man wrote a special concurrence pointing out that the defense argument which is very similar the argument presented here if it's accepted it would reach require truck or two according to his words utter magical incantations that are really unnecessary and provide no additional or meaningful protections for a defendant this court  there's absolutely nothing in this record including defendant's statement an allocation made in sentencing that would indicate he was unfit for trial and the defense further builds on the magical incantations argument contending the trial court did not follow the special provisions agreement by asking specific questions of the defendant to make sure he understood the proceeds and just and justice forbearers touched on this issue but what we have here under the special provisions on may twentieth two thousand and fourteen defense can this was during the jury trial defense counsel asked the court judge the only thing we asked to put on the record is we would request that the court inquire as to mr thomas whether he understands was going on and have him explain in his own words what has happened up until this point at that time the court asked the defendant all right mr thomas do you feel you understand and the defendant got off the judge's question he responded yes your honor the court asked everything the defendant answered yes your honor and then the court asked do you wish to comment on your understanding as to what's occurred so far i mean and you put in your own words or would you like to come to your own words what you believe is happening in these proceedings the financer know so the court gave the defendant an opportunity to explain in his own words what was done the defendant declined to do that then on may twenty fourth two thousand and fourteen during the afternoon portion of the jury trial defense counsel asked the court judge we would ask you to inquire with mr thomas as to whether he understands what's going on and this is what justice or various referred to the court responded all right mr thomas do you feel you understand the financer yes your honor the court responded ok very good then immediately after that defense counsel told the court and judge i would note for the record that during breaks mr thomas and i have discussed this case we've discussed any questions that he has and he doesn't seem to have any questions about what is going on here the trial court did attempt to ask the questions and follow the special provisions or de defense counsel in point the court there didn't seem to be any problem with them understanding anything so what is the trial court supposed to do then force these answers out of the defendant it seems to me that would give a defendant way too much power in this type of  the case and one way too much error to possibly be injected into the case i'd like to comment on a couple of cases the defense side the first one is in the people case at the fitness hearing in that case both parties stipulated to the psychiatrist report the trial court in that case then stated all right we'll show pursuant to stipulation then  on the defendant fit to stand trial there was no further discussion on the issue and the court in a written order stating that pursuant to the people and defense stipulation to the finding dr allen the sandinista to stand trial that's a very different than what we have in this case with a stipulation that dr howard or an expert in clinical psychology filed a report october fourteenth two thousand and ten finding the defendant has achieved legal fitness the parties stipulate dr probable or who is a clinical psychologist and an expert on the truth and this would testify consistent with her written report they did october fourteenth that the defendant has achieved legal fitness and is able to understand the nature of the charges against him and what rating in his defense as such the court finds based on the stipulation of all parties that the defendant has achieved legal fitness and is able to understand the nature of the charges against him and cooperate in his defense i would note that this is found at the state's preferred pages through for the versus cook and people versus cook the fitness hearing was held a year after the report from the doctor was filed even though the statute requires that hearing to be held within forty five days of the report also noted and defense kind of makes light of this in the reply brief that a different judge had been assigned to the case so this is a judge who would not have an opportunity to observe the defendant as opposed to our case where by his own statements to the court this guy had been trying to get his trying to be hill for five years so we have to court in this case judge this was able to observe this defendant for five years including him going against his own attorney that hey i want my trial to go forward while you're trying he has another murder case right now and she's asking for a continuance i don't care i'm tired of waiting i want my case to go forward i don't believe there's any evidence  all in this record to show that this defendant was not fit and the cook case we have a defendant there who was unable to manage his own affairs he received services from a program for adults with developmental disabilities the defendant in cook could not even live on his own someone had to remind him to take showers how to dress appropriately and to even some alarm clock so  the defendant here within his own home and although the defense grabs on to the cook case it tries to depart from the cook case on the issue that the state also raised was if this court finds there's some sort of an ambiguity on that issue of fitness the remember years a retrospective fitness hearing that's exactly what happened then cook and the only evidence presented concerning fitness is that report it's certainly something a trial court can look at again even though i don't believe that is necessary in this case if this court is determined the ambiguity exists that is the appropriate ask you to affirm thank you dan thank you i'm responding to a few points counsel states for the state says that well the the there's a clear distinction in the case law between cases in which the court stipulate to the conclusion and cases where of the expert in cases where the court's stipulates to the actual findings or the bulk of the report itself but that was exactly the situation in cook in cook the the stipulation very clearly said it was there were stipulated to the experts findings in his report as well as the conclusion and would testify consistently with the reports finding the defendant fit with no discussion or comment the trial court said that well we'll find a defendant fit based on the stipulation expert's opinion and that's exactly what the court in cook rejected that is not sufficient you have to go beyond that you have to put something in the record showing that you've made your own independent assessment and not simply say that well offset that and that's going to be good enough so yes some of the cases do make that distinction but in the cook case at least it was clear that that even when you stipulate to all the findings and all the facts it's still not good enough to meet the standard the counsel argues that well there was nothing showing that mr thomas was unfit for trial wait a second that's not that the standard he was found on bet initially once the defendant is found unfit that shifts the presumption of fitness and that makes a huge difference here that that raises the bar for before you can then find that he is fed rate and in addition all the other factors we had during this four year in ran into tween the finding of fitness and the trial counsel refers to mr thomas a statement allocution well court will be able to read that for itself but i would submit to the court that statement allocution after you've already been found guilty is not exactly the most propitious time to decide well now i'm going to make my case and explain why i'm innocent that's about the worst possible time not exactly a brilliant strategy doesn't exactly show that he really understood what was going on in his rambling statement the opposing counsel argues that there was compliance with dr cooney as recommendations because the court asked  want to comment on something this is an individual who has i q of ranks in the bottom zero point zero point four percent of on the scale he may not i didn't even know what comments means we don't even know that based on this record so the fact that the court just asked him another open ended question proves absolutely nothing and certainly doesn't prove compliance with dr cooney as with with the order the court's own order adopting as recommendation with respect to remedy in this case i would call attention to what was argued in the in the in the in there in the reply brief if this court agrees with me that under these circumstances this case we can have no confidence that he was that at the time he was down at the time of his trial that he was found fit but then i would suggest that the best remedy to simply vacate the conviction given all the explored mary circumstances this case including the failure of comply with with the court's own order i know that some of the courts have looked at this  what seems to be a trend favoring retrospective fitness hearings but what is often left out is the state left out is what the court said afterwards word said that this is not a principled and intelligible development of the law the supreme court was not endorsing this trend of the law it was just observing that this was the trend and and saying this was not a principled and intelligible development doesn't sound to me like the like it was in bracing this