trial but be happy to answer any questions that i've raised  it's a fundamental requirement for every criminal trial that the defendant is fit in this case there were several concerns regarding mr robinson's fitness that arose before trial as well as during trial and the trial court failed to ensure the fact that m never concluded that he was a fit to stand trial but i'd like to focus on what occurred during trial that constitute that there was a bona fide out of his fitness raised and when mr robinson attempted to commit suicide on the second day of proceedings you know at that point there are several factors that together as a whole constitute a bonafide doubt and it was despite all the prior reports there was a concern at that time that judg event certainly but here i don't what judging him said on the record for what he said he said from what he saw mr rosen appeared to be with it and i saw him discussing with co counsel there was a back and problems but i don't think the judge was judging him observe robots what counsel was saying counsel is saying that when we're discussing this trial with mr rudd's and he's unable to communicate about the trial so there's and he just you know and he did not act on the concerns that arose during trial and after trial similarly here just you know fitness defendants required to be fed at all stages of the prosecution so you know the the reports finding him fit before do not account for what was going on during trial when counsel as an officer of the court was informing the judge we can't communicate with the client there's evidence coming out we can't discuss that with them and i think it's  that in this case it was a jury trial and defense counsel did not give an opening statement to the jury and you know that's an unusual step unless of course defense counsel is having difficulty communicating with his client and so i you know the defense counsel said you know it's not just the suicide we've been having difficulty on day one we hoped his condition would improve it's gotten worse he spent the morning at the hospital getting treatment for an attempted suicide and in terms of the prior opinions those who you know that some of the information was stale you know it was not but it was not addressing what was going on at that moment and again touching and it had a duty to ensure mr ranson was fit at that time not to just reflect on when there's a bonafide doubt when the facts surrounding what's going on constitute a bona fide l that's what that's the judge's duty to him also meant that he had the letter from one of the examining  two points with you know i judge and she ended quote one of the reports from dr ned carney which was done in the summer of two thousand and six now this this is the trial in october of two thousand and seven so ten months earlier he's rely so this is stale information but i would also add that when doc dr nick carr need met with mr robinson in december that was before you know another incident where mr robson head self soil you know he was smearing feces on himself and there was also findus proceedings with judge len defense counsel asked judge len to and this is pursuant to the fitness statute allows him the appointment of his own expert for the purpose of rebutting that doctors of the doctor's opinion that he was an opinion from this district people be ballo said although the statute says may the only supreme court has interpreted that provision to mandate the appointment of at least one expert and that opinion the supreme court opinion kenyon said that such because the defendant wouldn't cooperate right i think that goes also to to you know this actually does say nay but to the extent the importance of given this appointment of an expert the judge's discretion is is limited in this given and that's as articulated in this district support opinion in ballo but also i think it's fundamentally unfair for judge lynn to say you have to cooperate with what's going on here when that's the opinion that mr robinson is attempting to rebut he's saying having a private physician do this it was not my understanding he said because the court appointed physicians are finding something that we think is you know he didn't agree with he just basically asked for a private we would like private doctor it was never raised because we want to challenge this lingering  you know i think clearly he's are trying to address the opinions that dr akhter barry is reaching and he's trying under the statute which entitles him to that expert of his choice to refer to her but what's going on with dr etchepare view needs to be well i think again trying to focus on what occurred on the second day of trial judging him dismissed what counsel is saying because what these doctors have found him to be no lingering and that's not counsel that's not true and has been elevated with the importance of that well the importance of of having his own expert i think the record shows that he was the difficulties with doctor it's a very that's why he wanted to have his own expert and i think it's relevant  would i i think the record shows that you know essentially when he's acting out that's by choice and he's trying to delay things i think that's related to the lingering opinion and i think if  judge lynn had awhile that opinion there be a more complete record and mr and mr robinson would have the right to present evidence or at least to cross examine the experts that were saying that  or any of the court appointed experts was there no but i think what ballo and again this this district opinion in palo recognize that what's the value of this expert if your choice for you know an ind defendant who doesn't have the funds to hire his own expert and the value is not just to you know rent or provide another opinion but it's also to help counsel on how to cross examine that expert so i think you know defense counsel asked for an expert in order he did ask for an export expert in lieu of what was going on with dr xperia and obviously your point of your own experts the purpose of that is to is right and it and i would argue that judge that the failure to appoint an expert the prejudice is not known because it's obvious what could have happened is there could have been another that x ray could have said no this this behavior is not foolish will it is related to his fitness and that could have changed things for what happened what occurred at trial what judge etchingham that th suicide attempt wasn't just an until a delay tactic which is what judging him characterize it as and so i think that is in terms of this case that's the that's the harm in not allowing mr robinson his defense attorney did the choice the opportunity to have the core appoint an expert of his choice and also i would also add a few points in terms of you know another other facts in this case that undermined judging him so reliance on these prior reports again as i said that the reports were months old and including the one that got judging him court it was ten months old well before  had increased problems and you know though the lead the more recent reports were just letters from judge from dr actuary there were full fledged reports that articulate exactly what he was relying on and i think it's does i think is undermine undermine the reliance state judging him relied on these reports i think the record shows that when defense counsel was as officer the court was expressing his deep concern about what was going on with mr robinson judging h look at the reports there's nothing in here that says he's some fit but again those there's facts in this case that undermine the relied reliability of the reports he wasn't given an opportunity to talk with them to his own expert who may have provided information that undermined the accuracy of what saying that the report that he quoted was ten months earlier before other things occurred and again you know another element of this case is that the proceedings were divided among you know different judges and different attorneys and just the process of parsing out this fitness over here and the trial proceedings over here inevitably undermines the accuracy of what was going on with these previous proceedings  sure i think just to on on the on that issue just to when you when you get down like that yet so let me finish on the first issue and then i'll touch on the request that his conviction be reversed and remanded for a new trial on that issue and touching on the four thirty one b issue just beyond what i raised in the briefs i would add  that currently in the same illinois supreme court the case of people v thompson is the issue litigated there is whether the violation of the rule constitutes reversible error and hopefully that pin you will cry guidance in terms of whether the error here would be the first one up but regardless of the outcome of that case we contend that the failure to comply with the rule was not harmless under the facts of this case and that the issue of intent mr robinson's intent was a closely balanced issue and the failure to comply with rule for the thirty four thirty one being was therefore no why the rule is written the way it is to ensure that people understand and accept all these four principles and i think the amended rule you know requiring good policing up upon the judge the soonest fontayne duty to make sure that the jury understands and accepts shows that unlike last for you know that where is the default there was the defendant must request this is required in every trial and i think that change reflects an increased you know importance on compliance with the decisions aragon no in wilmington from this district ed hall the failure to you know that that's not just a meaningless distinction that's part of the that's what the rule choir so that's it's not compliance when the judge doesn't do what the role requires that the judge when it didn't outright deny the requesters and said before we he's got to cooperate person that we with what we've got he's not cooperating he doesn't cooperate but then his neck to cooperate with private counsel the denial was conditional the which is a valid point given the way the nature of the system it was the hook and really here was a lot of different lawyers a lot of different judges many different in the issues by two different so although different judges and different attorneys and defendant at the center argued that because of the differences in all these people that the judge didn't have all the information available to them but nothing precluded the defense from presenting all this information to just one of the hearing the defense or the opportunity to present transcripts from the previous status hearings had the opportunity to call the defense previous attorney to the stand and question him about his opinion  statute the statute clearly group it's plainly language a structure clearly grants the trial court discretion it uses the word may in a previous subsection uses the word shall the court shall have shall appoint an expert of its own choice in section government see under these circumstances i say i really should do it and if he doesn't do it under the circumstances when he should that's the abuse of discretion so i don't even mean you under all of the cooperate the judge said no he's got to cooperate for so he's not cooperating with what we've got now exactly cooperate with a private examination first he's got to cooperate he didn't say absolutely not no way case closed he said first it and i would argue that that is it doesn't amount to an abuse of discretion which is the standard for the judge terminations here with regard to to why not find a bona fide out again but the judge didn't he had his discretion he had all the doctors said now that he's not fit and they often fit the judge had that before him i'm the judge had all the information and you actually it's probably his discretion to find the defendant was fit for trial and that there was no season if there was no bonafide doubt of his fitness defendant testified lucidly he testified responsibly to defense counsel questions and he testified in conjunction with the defense's theory of those motions furthermore on the day after defendant and he found there was no one i doubt considering all the defense counsel statements at the time that he asked telling telling the judge that he believed that the defendant wasn't the center was incompetent was unable to communicate with him and the defend younger that should this court reach that decision the proper remedy would actually be to our remand for retrospective fitness hearing one using the contemporaneous medical evidence available during the trial and then determine if the defendant  to kill her at the time that he was stabbing her we have a third party who spoke to the defendant prior to the incident occurring who was told on the phone by the defendant that he was going to kill them and that if she read something in the news about somebody being stabbed i think  just a few points to say argues that mr robinson appeared to testify recently on the thirtieth trial but fitness is a requirement that is applies to all critical stages of the trial proceedings so i think the message of defense counsel was forget about it and i think that you know at the next hearing even mr robinson tried to speak up and explain what the difficulties were and the judge said no  that's not what's written in the score i think it's clear from the way that judge len handled that request that he made clear that there was no way that he was going to get that that i'm not defense lawyers can't allow themselves to be scared off by a gentle the media is just nothing do not bring this motion again the judge said he has to cooperate with what we have first so isn't it reasonable cited in my brief to the case of people we've people v walker and i think that provide some guidance here to the facts are different places and people of iraq or defense counsel the first day of trial said i'm not ready can we please continuance can we please continue the case you taking your statement just that you think it is absolutely crucial for the defendant to be the defendant's fitness to be coming before he before the trial continues his thinking like to request a private physician why not do that what would have been the downside to doing that well i would just again i think the the way that judge lynn treated that request made it reason and he said next that's out of the question i don't think this is the reason deliberation that this important request meredith and i think it's what we and we'll i think we can all agree that he denied the request at that time my to address yes i did but again i think a fair reading of the record the way that judge lynn responded is and again looking to people be walker their good defendant you know defense counsel really raise that request again at any point later it was the manner in which their request was rejected is what the court found to be compelled compelling reason for the for the failures for you could your position really pretty s  and just to respond to a couple other points you know in terms of the zaheer the fent the sayer he said the evidence was overwhelming but i would focus the evidence on the issue of intent there's no question that mr robinson was there that he was involved with this incident the question is whether there was an intent to kill or not and again that goes to the the problem with the way this state charge their offenses that and during closing argument the issue was was this intent to kill or not and so again in terms of the for thirty one b we would ask that this court reverses convictions or man for a new trial as well as with the fitness issue and just to respond briefly the state argues that it should be a retrospect fitness hearing this court certainly can decide that that's an appropriate thing to do if based on this record there's a if there's a fair and accurate way to determine now with mr robinson's fitness but relevant factors include the delay and why it's almost three years ago now that mr robinson was tried and also you know it would reiterate all the other problems you know he was the night the opportunity to get his to get a court appointed expert the record wasn't developed and that men are judge refused to hold a hearing and we don't have any record developed in terms of what occurred at the second day of trial so i think given the problems with the record and that's another factor that this court recognising people ve saying to deny a retrospect this hearing that we would ask that it's not appropriate in this case and that the appropriate remedy should be to reverse this conviction and remand for a new trial here is the  factor is what's in the indictment that's that's the intent of the stake is derived from that indictment and the rest of the factors in that test all weigh in favor that this was just a group of backs that was no intervening events that was the same person  was the same the same location it was the same type of backed and then there was no division of the one that when the state presented its opening statements there was no this is these these injuries go to this offense or anything to that effect and then finally in closing arguments i mean and the closing argument was focused on mr robinson's intent he was there there was an incident that occurred it was whether mr robinson was had the intent to kill or not and that's why the state discussed the work well i don't think counsel was going to say that you know my client's has a lot of mental health problems but i think what i think what it indicates is if if what defense counsel is saying which is he cannot communicate with his client he's not going to promise the jury you're going to hear from mr robertson here's what he's going to tell you because he's you know mr ranson is not responding is not engage with counsel at all about how to assist in his defense so i think that that based on what counsel is saying to judg ing him that provides an explanation for why there was no opening argument again and again this is a jury trial and mr robinson's testimony was a critical part of the at the jury asked to review it which i would say also indicates that evidence was closely balanced on