where her counsel failed to affirmatively advocate that position that she was fit to stand trial and therefore we ask that you vacate the circuit court order finding her unfit to stand trial and it's rather an unusual situation here as i'm  had raised this issue of unfitness there seems to be some presumption defense counsels a little closer to the defendant this situation he could at least if he was making that allegation could have maybe provided a basis  why defense counsel believed to be unfit in this case it was the state of the state didn't provide any basis for why she was unfit simply raise that doubt of bonafide fitness and then was sent off to diagnostic testing i think the problem that's created in a situation like that is it allows it allows a circumstance where you could have quarrelsome people who are subject to fitness procedures when they they are fit just to kind of get them out of the way  supposed to do what he believes she's on that that's a different circumstance we didn't have that here we simply have the defendant saying i don't object to her being sent to evaluation if he raised it it's a different situation because then you've got a case where defense counsel actually makes that that fight that raises the issue of bonafide fitness and that's what most of these cases are in which case the state bearing the burden of proving fitness is appropriate but here we don't the defense counsel didn't make that  that finding or didn't make that assertion so if defense counsel truly believes that defense counsel should have made that motion to join the states nor should it in this case in particular because each his defense counsel raises it would be decided differently but i think in this case the simply because the defendant was able to provide information from other counselors people she's had a professional relationship with i think there's more of an obligation here to at least that's the third party or guardian of so view of the situation particularly where the record seems to show that she didn't really have a level she didn't seem to have from the record she didn't seem to have a problem understanding the process as a matter of fact the testimony of the evaluator was that she and i'm quoting was reasonably accurate regarding the role of the judge she had told the evaluator that she believed that her attorney was to defend her rights and her she knew that the state's attorney was have the obligation to protect the laws of the state those all seem to be pretty pretty compelling reasons to show that she was fact not unfit in this situation she may have been mentally ill but she was not why i think in that's i think the problem and they addressed a little bit i think the public court with the area of mootness is this is kind of an it's it's i think more appellate court called it a personal preference that she'd be found fit i mean i think there's certainly due process right here because she can especially in a case of missed him you know like this one she will be confined or could very well be confined for a period of time in order to regain fitness longer than the entire sentence would have been this is these are both misdemeanor cases in which case she could have been sentenced to either minimal jail time certainly under six months or no jail i think you do run a danger the way it's set up now because the statute provides that in all cases the state is the one who maintains burden of proving fitness and this is maybe you have a perfect storm of an example of how this happen is you can have someone who undoubtedly from the record was probably kind of a thorn in the side of the court or on the side of some of the council and it really has a look the record has a look of just yet or out of here because she's causing problems and and i think that's a problem you run into kind of a coffee house situation here where you've got the state and defense counsel arguing the same position and so the jury trial was really r meaningless here for the jury they had what the year the jury sitting there in the state says we have the burden of proving a defendant that we can't do that and the defense counsel gets up there and says we're asking if you find her unfit it seems to be kind of a waste of time of going through the jury process if you're going to have both sides advocating a position in this case adverse to the interests of the i don't want in response to justice garments question you indicated that if defense counsel thinks that the defendant is unfit and we have a different situation then he would have an obligation to do exactly what he said he did hears and you know we she's unfit it since the state has the burden and th to prove that it's right to go forward it's in there it's in their best interest to be able to say the defendant is fit we can go through what does right so the state says we can't do that in this case isn't that enough for the defendant to then in his mind at that point with the state saying that they can't forward is not enough information for him to not say on oh yes she really is fit we want to i don't think so in that case and that goes back to i think the problem you have with the way the system is set up and the way that it could treat people who are maybe not really unfit but are just a problem because you could have state say especially in a case like this it's a misdemeanor so you know what we're maybe even consider the fact that they can't win this in europe and that's always a chance to and say don't we we just she's not there and then they send her away and the punishment can actually be more harsh than it would have been had she just stood trial and in the plea agreement as she did and gotten a more minimal prison sentence or jail sentence so i think i think depending on the situation of when defense counsel raises that what the what the other facts in the record are here she had a letter from another councilor she's actually from an area other than the area in which she was arrested here so she has a professional relationship with other people there were no her  her and those people could have been brought in as witnesses or if there had been someone who was advocating her position perhaps other than defense counsel because defense counsel meant to have an interest in she's unfit we can't triers them maybe go home the kind of thing that probably should be should rest with defense counsel am sorry with the findings it may be a case where it's completely obvious that she's on fits she doesn't know what the judges and the there's aunts of people here i don't know who they are you might have a situation like that where it's pretty clear and in which case if you had say a guardian of light i'm looking out for her position who says you know who she is completely of i've tested her and there's there's no way that she could understand the process significantly enough to participate i think that would be the five and it may be more of a concern in cases where you have the fence counsel raising them but i think as long as you have a situation like born here where she actually comes in and says i have people experts who will testify that i am fit an expert step defense counsel knew about and could have all effect tried to get as an independent evaluator but was unsuccessful in doing that but he could have called that person as a witness and it may have been a different outcome so you're you're saying that we do we know what the defense attorney concluded in this case no other words you could he could well he well have thought she really court here fell down a little bit here too because usually the court would say what is the basis for this you know why do you think this is true and defense counsel could probably write off a half a dozen things but here we had the state do it and that was never really approached it just seemed everybody said great let's get her out of here center over to be diagnosed and she's probably unfit so i don't think there's anything in the record to really suggest that defense counsel actually believe her to be  t and just sort of acquiesced i mean he may have done that but he may just as easily has decided that once the state had raised off i doubt you have him the way the system is set up in the burden shared by the state or by the state unspecified mood disorder and want to ask specifically about those questions that are related to the trial process she understands the judge how the role of the judge she understands the role of her attorney she understands the role of the prosecutor so it seems how does the fact that the defendant can't waive waive her own competence right right right so if she's incompetent she can't say i want to proceed right so if you're talking about the specific facts of this case the state says we can't meet her burden that this defendant is fit how does that enter into whether counsel's ineffective if they had point in whether he has the balance in my asserting now in light of what the state has done here that i'm asserting that she's ready to waive her competence you know she's saying i'm fed i'm fed unfit does that have any bearing that she can't we were on top in the in the determination of whether councils in the third i don't think so i mean you may you probably would get situations where you might just have the defendant is the only one out of the entire country that pensions fit and in those situations i don't think you're really going to have much of a problem even if she's maintaining her fitness because even if you were to appoint a guardian ad litem who's going to quickly determine that she is fit or is not fit rather  or if it's sort of fit all the parties agree as she's evaluated it may not be necessary but here you actually had other evidence that could have been presented so it really looks more like a situation where we don't really want to be bothered with all of that she's been a problem she speaks out of court let's just some of the away and that's what is it let's look at it from the other perspective you're been something you know it's a little cynical i think really to say ok well it's a misdemeanor case we have a defendant that's just kind of problematic and what what position does the state who has now decided that they cannot meet their burden of proving that she is fit and now you've got the defendant putting on evidence that she spent the state has already said we don't feel they're on the record saying we can't meet our burden and now we're going through a trial where the issue then becomes whether or not that you would need a guardian ad litem to represent the defendant's interests to say yes this person is fit or know this person is unfit particularly here where if it seems on the record she filed her own motion to withdraw the police but what if the still i mean then you have to point to somebody else no i don't think it has to go on indefinitely and in fact this is status or so i don't think this is a common situation at all where it would it would be that big of a situation although i do think it's more likely going to occur in a misdemeanor situation own situation myself because the the punishment here it's not going to matter as much probably for someone who's ultimately convicted of a felony because their sentence will be so long here it's easy to just  understands maybe mentally ill but i believe she's competent for this purpose and it's necessary i think in a situation like this because counsel's interests may lie may have different different interests the fugitive as i'm sure counsel of and but you wa fitness or proof fitness when the defense and the state says it can't isn't that an indication that defense counsel agrees there's a at least a bonafide doubt or morse more than that when he joined her m follow up you talk to some of your argument sounds like you're contesting the finding on fitness are you when you say just ship her away what have you or you could or you contesting it in the i don't think there's enough evidence here to confess that i think that's a major problem is we just we don't know if she had significant evidence that the judges and the judge found her unfit based upon the expert examination right but not based upon her witnesses other psychologists were those  a little bit of an odd proposition here because ordinarily as we sample age fifteen or brief the greater includes the less or if counsel has an independent duty to raise a bona fide doubt about venice over the client's objection surely counsel can just not object when the state raises bona fide to the extent that my opponent is suggesting that we don't know what happened here and what prompted the bonafide doubt on the state's part it's important to back through a plea process and the pages are three in four of the report of proceedings she said mohnish she's told that she that she's pleading guilty to a misdemeanor she's told twice that this is going to be a conviction and then a couple of months later she moves successfully to get that plea overturned in part on the grounds that counsel had allegedly convinced her that this would not result in a conviction so in other words at that stage unless she's that he or she didn't appear to understand that a guilty plea results in a conviction and this is something else on the record here in may of twenty eleven when this council is going to defend filed pro se motion to quash the charges and this is found at sea fifty four in the common law records and one of the theories she serves in that motion of the best our understanding is that there was some kind of video taken of the erast and according to the defendant's pro se motion that video must have been altered because the person in the video is wearing an item of clothing different than what she was wearing confusion about what's really going on now it's just one month later in june of two thousand and eleven that the state stands up and asserts its bona fide doubt and it's at that time that defense counsel says it's no objection but also note that now turning to the fitness hearing itself which happened several months later at that time counsel has seen counsel broke both sides seen several pro se motions addressing the defendant's own theories verdict if the state can't meet its burden you can find that are ninety eight a reporter and then in his opening statement to the jurors counsel says he's going to be asking them for a finding of unfitness and he suspects the state i can't independently verify who was actually there who was not but i know that her formal former counsel was listed that is that the retained counsel would walk her through the initial was on the list of potential witnesses and her treating psychologist so it looks as though someone had arranged for them to be there unless those just so in any event it's hard to say here that using common sense counsel had not great items c one fifty seven and one sixty one in the common law and the first of these is really just the trial court's written order denying counsel's motion for appointment of an independent expert so that doesn't really go to this point c one sixty one is a document that defendant herself paired and she complains that her psychologist had not been subpoenaed but it doesn't really show what he would have said called as an expert and it doesn't explain obviously what he could have said as a lay witness who wasn't appointed as and again the fairest inference here is that counsel concluded would not help her and indeed opponent in general two categories in a constitutional law of decisions made by the defense team when a defendant is represented there are those that are made by counsel and governed by rules of reasonableness and there are those that are reserved exclusively to the defendant and i virtue of some specific constitutional right other than the right back to assistance and this is one of those decisions that council has got to me first of all consider that in cases like cooper the supreme court of the united states has explained that fitness is necessary because you have to be fair in order to waiver exercise those fundamental autonomy basic rights like the right decide whether to testify like the right to decide what kind of term and indeed in cooper itself the supreme court of the united states says that the effective assistance right can't be exercised effectively unless there is a fit defendant and that's also embodied in the standard dus y and wrote the standard for fitness to defend has to be able not only to understand the proceedings but also to rationally assessed counsel with the defense so there's a hearing which fitness as logically prior to just about that's subject to a couple of constraints under forever the defendant has to be able to knowingly and voluntarily waive the right to be represented so that standard may or may not match perfectly on the standard for fitness but it's pretty close and then in more recent case of indiana against edwards the us supreme court went further and said well there are some cases where the defendant might be fit to proceed to trial but not to represent herself and the state may force representation upon a defendant in that circumstance so these are hard questions we're not doubting that there are important moral and philosophical difficulties here as there always are when mental illness but that doesn't deal with the fact that it's not constitutionally required and that it may be costly in certain cases to implement and might be harder in some counties and other i imagine that the stable of attorneys available in washington for million might be different than the size of the group tourney's available in say cook county so that's a hard question we're not saying our opponent's policy proposal would be frivolous but it should be considered in a different kind of setting association and the national so c action of criminal defense lawyers and the a b a all took slightly different sessions and they actually adopted positions that you might call a little more paternalistic and a little little bit less libertarian so if you're balancing all of these the guilt or innocence phase of a juvenile proceeding or a criminal defense counsel tells us that he doesn't think his client is innocent and it's important to keep austin m having just that because otherwise austin m would become a kind of roving invitation to scrutinize counsel's mindset in an array of different decisions that consummates the something fundamentally different about the question of guilt or innocence this is actually a concern raised says so what are you suggesting that this court probably you know you said that you think is a strategic decision one made by counsel but what is the what is the rule that the broader role and it's probably the heaviest left so you need not go so far would be to say bad absent a conviction there isn't a sixth amendment strickland style prejudice but assuming that six strickland analysis surprise what we would be saying is that counsel has to make a reasonable decision and that's not just strategic as in all cases council's decision making needs to be governed by strategy by the w duty to suborn perjury even in cases where doing so might further the defendant's interest in not being convicted what you have is a right to counsel and counsel as an officer of the court is constrained by certain ethical duty so of course counsel should investigate i don't think it was a failure to investigate here and of course counsel should confer with the client but at the end of the day if you take the objective interests and the ethical duties of counsel and the decision is recent poll then that should prevent further inquiry and it may be true that in some cases the defendant is isn't going to have as much discovery as she wants but the existence of constitutional rights has never meant that you always get as much discovery as you want in order to build a record that your rights were violated in an up to claim figure out whether someone might have had some evidence that your constitutional rights were violated so here you can just fall back on the ordinary strictly presumption that what counsel did was reasonable you should not  that counsel was just being lazy or counsel was just attempting to conspire to state that brings me to a final point about the record as a whole my opponent suggested that if you read it the record shows that you were trying to just shuffle this defendant stage that's not what happened here after the first guilty plea was withdrawn everyone exercise caution that's what's going on as a convergence of national and hands among lawyers among the judge among the experts who  examined that need to pause here and ensure that she's fit for she proceeds to trial i would add that there's a recent statute that adds additional safeguards here public act ninety eight dash ten twenty five which was signed into law this last month as a videotaping requirement for clinical interviews in this setting so in future cases not only will experts evaluate these defendants but in most cases they should be videotaping those and there will be an additional opportunity to probe the credibility of the interviews that way there's also a cap in specifically for misdemeanor cases so if for instance your underlying crime is only punishable by say up to six months imprisonment your confinement and the observation area for fitness purposes is not going to be able to exceed that now this new statute wouldn't really benefit and here because her crimes are punishable by up to imprisonment so her case would come out the same way under either statute but lest you be concerned this is something that haven't really been discussing here and that way the court will have an opportunity to review whatever documents it wants to again the parties haven't relied very extensively on that but for complete say i mean mr becker as the case is are you as of today what is the fitness status of mary hold is that of record i guess i should ask you that first yet she has been restored to fitness and i am not aware of any determinations of unfitness in any other lisa on the fitness issue it's moot so the question is does this mean one of the exceptions and the next question is how likely is this to recur as an exception for us to consider that the question of is difficult here and frankly under this court's precedents there is a little bit left of the eye of the beholder there anecdotally i would suggest that when a new kind of claim arises and gets teed up in the appellate courts i would ask that if the court doesn't find that the public interest exception applies also addressed the difficulty with the collateral consequences exception here at the time  collateral consequences related to this particular defendant and we don't have that here we don't have a citation of all the relevant statutes we don't have review how it would work or on what her situation really is in terms of employment  but you have agreed with public interest exception applies is that correct yes that is our position or early so that that would be a fair and one other question when you were going over the duties of your tourney there can be situations i guess you would agree that even though the state has the burden of proving fitness were the defense counsel is convinced that his client has failed because a he or she has an obligation to advocate  fitness he certainly has an ethical obligation to do so i don't think anyone would argue that the framework for fitness allows counsel to play games and if counsel doesn't have a good faith basis for arguing that  is unfit he probably can't just rely on the state's representations now of course the court also has an independent duty here the court needs to make an inquiry and the court has broad authority to order additional later there we go back to i think your opening point is that common sense and the record which dictate that he did not believe that the fed it was that's correct your honor and he need not have certainty on that point that the standard ultimately is going to be whether it's more likely than not that she's on fet and in balancing the risks here violating the client's due process right it's safe to say that that counsel would treat a significant risk counsel had defense counsel believed to be unfair to raise about modified fitness or say we're really with this rather than we we don't object i think there's there's enough ambiguity in that given the stakes here that i don't think we can presume and i'm not suggesting that is was counsel said that the council was lazy or being devious or anything i think it may have been a simple she's difficult she's obviously got some sort of mental issues i don't know what they are slime not going to object to this and again i think as counsel said you know there's some evidence in the record from the the expert that she was paranoid or delusional and those two that doesn't have to do with fitness necessarily it might but the fact counsel really knows what's going on i think is exactly the kind of thing that we have to protect against because we we don't know that counsel really knows what's going on here instead counsel just a laid back we'll see what happens and things i think would be a lot simpler obviously we'd probably all agree that if the statute was written in such a way that person making this claim was actually given the burden if rather be defense counsel for the state rather than the state it would be a much simpler situation the state bear the burden of showing on fitness that the fund that would defendant raised it seems to be written with an eye towards most of these situations are going to be the defense having an interest in proving fitness and when defense or state rather and went to the state case the evidence of the examiner but if state had just gotten up and said we have no evidence that we simply cannot meet our burden we don't believe he's fit and defense counsel moves for a directed verdict i think you're in the same boat here the jury is dismissed directed verdict is granted and there's no evidence and no one knows and i don't think the guardian ad litem here is going to be merely a mouthpiece for the defendant as as  was that the defendant was interrupting counsel interrupting the proceedings and guardian ad litem here would simply be mouth in her opinion but that's not necessarily true because interrupting counsel interrupting the proceedings aren't necessarily not understand be simply i don't believe my lawyers advocating on my behalf just because she didn't understand it was a conviction granted she's told by the court but we see several instances where someone is told something from the court and they may not understand that it's a misdemeanor i didn't know that was a conviction that would be reported that type of thing or other complaints about her plea was that she didn't know that a class a was the most serious type of misdemeanor i think that's actually probably a pretty common misunderstanding people don't understand of a want is more serious than or you know that type of situation so it doesn't affect reflect a certain level of sophistication to show that she does understand how that misdemeanor system works and maybe didn't hear the judge but understands enough and that wasn't contradicted by the record or by the the expert that she she didn't understand what was going it seems that she she had a pretty good idea of what was going on despite the fact she may have suffered from some other