with information concerning the events of the crime due to amnesia automatically renders him unfit to stand trial this court should reverse the fifth district legal here and reaffirm the fitness must be judged on the t circumstances applying that test here at the defendant is fit for trial i'd like to begin with the fitness standard a defendant is that where he is able to understand the nature and purpose of the proceedings against him and  defense this standard derives from the broader constitutional due process right to a church prohibiting the prosecution of the defendants and it's virtually identical to standards employed in every jurisdiction in this country and every jurisdiction in this country to taking the consideration as well the two earlier expert opinions that were stipulated to in the state can see that he was on his face on this so we should look at those two plus the one that was the expert opinion that was presented during the rest honor we agree that all three reports are before the people stipulated to those in the courts and certainly consider them but i'd like to know that business is a fluid concept and so dr mann tani's report was the one that provided the most recent evidence of the defendant's mental capacity whereas dr ray vincent gilbert's reports for a year earlier and so while they were perfectly relevant i think that my doctor on times report was more current and in that respect and given the defense he can he doesn't have an issue communicating with counsel he understands what's happening in the proceedings he understands his options he can talk to counsel about trial strategy he can discuss evidence regarding  relationship with the victims i think it's important in this case to note that the victims were all known to him one as a babysitter first on the other as fast friends and the third is his ex wife so he has a preexisting relationship with these these victims and so has shipped isn't it true though that the defendant's and they basically have said look what's good assistance defense and other ways he could present provide counsel with his mental state for the weeks preceding the crime it's very similar to this case the defendant here like in schwarz had a strange relationship with his ex wife in this case he had threatened to shoot her weeks before and so defendant can certainly talk to counsel about that he was living with his parents at the time of the crime he can talk to his family about his whereabouts his emotions behavior his actions then becomes manifest weight is that factors alone sufficient to say that the finding of the trial court is not against the manifest weight of the evidence considering all the other evidence presented not in this case your honor in this case the evidence that was before the were given copious notes of this slowdown but the trial and given giving him multiple breaks and so there's no question the defendant hasn't disputed that those accommodations wouldn't make the defendant wouldn't  because as i mentioned earlier water for terms you know inability to assist in one's defense can encompass the fact that you can't remember the circumstances surrounding the crime  circuit said yes and he sure is certainly a relevant factor but you have to look at everything and there should be some additional circumstances that show that the defendant is unfit and it recognizes there may be those cases that exist however as most courts are recognized that would be extraordinary it would be an extraordinarily rare situation we don't we don't believe that it can't exist and by wiggs by by way of example your honor there there is one case on reporting that's the only one of the country that has ever found that a defendant was denied a fair trial as a result of his amnesia and that finding came after a trial he was allowed to go to trial and then post trial they found that he was that his in  at the threshold and the defendants can assist in their defense in all the ways that you described they can communicate they can make decisions regarding the trial they can choose whether to plead guilty choose whether to go to trial choose whether to cross examine witnesses be helped by the defendant in the defense if he can't remember the we're going to throw mean that's all part of it to not just the trial procedure but the actual yes your honor and we think that a defendant can at least in this case can talk to counsel about the events proceeding and they can you can assist in formulating a defense the defense doesn't always need to have a lot of a lot of defendants are faced w overwhelming evidence against them and they don't always have the ability to tell their to tell their counsel anything except sure i did it you know and there's nothing else to do except challenge the state's evidence and in this case there were questions of the state's  that the defendant did disputed at the discharge hearing for example the defendant argued that he the defendant argued that his ex wife to take away his child taken away his home taken away his best friend and taken away his business partner and he was just right and suicidal and then on top of that he challenge the people's evidence that's where in the people had not done  left the house or any of the victims they never covered the bullet and had discharged in the home which was a necessary component of the personal just charge of the weapon was a necessary component of a home invasion charge and so there is a number of pieces of evidence the defendant can still challenge and still present a defense we recognize that it's important that he can't tell us counsel what happened but at the very at the same time or this is a matter it's a preliminary forward in this case your honor he's not charged with attempted murder or any thing along those lines in this case his charge of home invasion and unlawful aggravated aggravated on awful restraint and so those crimes work completed at the time that he personally discharged the weapon before he let any of the hostages go it was completed when he led aaron down the stairs shot the the weapon and and  we got through the calm the nature of the crime is certainly relevant how does the new treatments come well i think it's a look at all of the evidence and determine whether the defendant can still in making it depends on the nature of the crime and the circumstances surrounding the offense are relevant to that to that part is just say ok look let's look at all the circumstances and this is something that the trial do here like let's look at all the circumstances let's look at the nature of the right let's see whether the defendant can reconstruct we don't know in this case whether he can or can't because he posits that is a major was enough and so all of this goes to whether he can doesn't mean that he has to present a defense that doesn't mean he has to be able to present it just means whether he has a military at this point in time to consult with counsel with a reasonable degree of rational understanding look let me ask you a question following up on both justice thomas and  pipe of crime and when the type of defense that may be mounted where that might be enough to say peace and able to assist in its own defense because of that amnesia or would you would would not your bright line rule preclude us from allowing that you know your honor i believe that there may be a hypothetical circumstance to do i have not been able to find one your honor and all the court cases but there may be that circumstance where given that the nature of the crime the circumstances surrounding it the people's evidence that all of these factors whether he can reconstruct the nature of the ameesha and all of those factors would go into whether a defendant more so can get a fair trial and we have to remember that the question of whether defendant is it is a subset of the broader to processing mary and so of course the defendant after trial can still challenge the case and say look look at what happened a trial i can't get it i didn't get a fair trial the preliminary grand business is whether he can at this time the system is defense and so what the courts have done is say look at time before trial we make a probability determination and we say it's probable that he can assist in his defense he can get a fair trial and then post trial if the defendant wants to challenge what occurred he is certainly welcome to do that and challenge his due process right to a fair trial and that amnesia and it would also allow defendants to escape criminal responsibility a must for has for the questions of reserve for i am scared or as i stand before you today i'm scared because i fear that if i don't do a good enough job today the almost supreme court is going to issue an opinion that states that amnesia their every factual predicate will never be grounds for a finding of unfitness that's not the law now and it shouldn't be the law the law as good as it currently stands which works and was stall and it doesn't need to be changed the terror start case is unique it's a case like no other because of the facts that you  have the fact that there is a gunshot wound to his head that has created brain damage in a mental defect and the fact that the gun that he allegedly used people's exhibit fifteen has the hammer pulled back and the cop was issued after he supposedly shot himself in the face and then you also have the procedural history of th opinion the fifth district opinion is not all that different from all the other cases that have weighed in on the topic of fitness it merely affirmed the trial court findings related to fit every other case cited by the state does in throughout their brief and throughout argument this morning the state has said that this case presents a per se rule and you cannot allow this per se rule that amnesia will automatically render defending unfit to stand this case hardly stands for that proposition much like schwartz doesn't stand for the proposition that amnesia will always get you there will always be finding them to defend unfit are much like shorts in the same  proposition that it will never be grounds stall doesn't stand for the proposition that it always will be the question as relates to me it was during do you agree that that's the only reason for the f those here do you agree that the the issue at the time of the groom is the only reason in this particular case no i don't because we have to remember what we're here on we are here to trial court when the appellate court reviews this and says there is a finding that he has not been restored to fitness and when he considers the evidence that of her the three reports  montana and all of them agree that he doesn't have any memory of the incident that he doesn't have any memory of forty eight hours prior to and he cannot relate the occurrence of the specially concerning the incidents alleged to counsel all and communicate those to counsel when the appellate court reviews that and that fact is undisputed and is their power under the manifest what of the evidence stayner could develop or possibly say judge this your room was against remember what happened from your own back presumes with that question that the stock a stands for the proposition for which they said that it says it's automatically automatically renders you one fifth it doesn't say that we don't know why the trial court ruled the way it did but it did in the trial court is presumed to know the law and to apply a proper the appellate court when reviewing it though and reviewing the evidence the trial court heard in reviewing the evidence that that the type of evidence the court to consider going to spin the syrians so that it can't be reversible error it doesn't stand for the proposition that it's always going to be the pella court in this opinion if we when you go back and read it it says we can't find reversible error we can't find that it's against the manifest weight of the evidence on the evidence that he considered comport with the type of evidence that he is to consider by the statu so they're not asking you know this this is a this case doesn't stand for the for the presupposition that it's all it's a crease an automatic rule so i don't think that if you reversed it i and the defendant's inability to observe recollect and relate it current especially concerning it's an obliging communicate the counsel if you can do that and you compare it to the statute if you're going to if you're going to pay more than just lip service to the statute as to what type of evidence they are to consider and we finally have a case that says yeah it's not against the manifest what is the evidence word says yet it was not reversed where to find him unfit we finally have this case now automatically support of biting him that this the court did not hold that a defendant who lacks any memory of the events or the issue may never be found unfit on this basis alone in that regard this case is distinguishable going on thus the fact that the defendant may be able to discuss aspects of the trial was a pretty does not override the fact that he was unable to provide his attorney with any information concerning the crime charges that sounds a lot like a bright line rul before the appellate court what is an issue was whether or not terrorists all should have received an original fitness hearing because he had claimed amnesia i was never an issue before the appe and it wasn't something that was ever decided because as we know the state consented to that original fitness hearing and they consented stipulated to the original finding of unfitness so this case doesn't stand for the proposition because it wasn't an issue that  matter we know that because whether or not terrorists causative got the original finish in the first place was never even considered and was never even before the court all that was before the court the only issue that it's different that's why i don't think that we are we are turning the law on its head but i take it you're not opposed to a finding that this is not a break and news is not a bright line automatic stall doesn't say that it's always going to be a finding them unfit it charts does not mean they reviewed the trial court or that he had not been restored to fitness and when the evidence that they consider comport with the type of evidence well i get what the rule we have as opposed to just the in nature is all of the all of the topics of inquiry to committing the crime and we don't have that here we can't have that here because the testimony from the alleged victim the ex wife was that terrorist all shot himself in the face  while i made it a reference to my brutha but the idea of someone going to shoot themself and they did put the gun to their head or them out but they don't feel that i'm for their face and shoot themselves but she said the show self in the face and i have a one year old he knows the from all of that the experts the three experts about his delayed memory problems his greatest troubles with the late memory that is the ability to recall verbal and visual information after a delay of twenty to thirty minutes memory loss piece fit into the trial court that they're always present at the trial or the idea that these things could be accommodated was there any discussion about that about whether this this delayed memory retention was was part of the tr  page number of record but he asked her what about his ability have memories concern in the sense in the lives of so we know he's at least conforming to considering the type of evidence that the legislature breaks and we give him a piece of paper in a bag he can help his defense counsel repletion of course and he can assess witness testimony i don't need my client to help me read a police report i don't need my client to tell me how he thinks that witness did on the stand in front of the jury you talk about the physical versus the mental aspect of amnesia i mean all the court has to go on is the testimony of witnesses and when someone said he has amnesia as to what happened at the crime scene whether it's a physical manifestation of it or not that's the testimony and that's what the court has to rely on and this is the fourth time i think you're going to hear it now it's very difficult to see if we talk all the time about how we don't right rule twenty three's here it's very difficult to see when we've gone back and forth as to what is the additional element here outside of the amnesia at the crime scene that renders that rendered him unfit by the trial court and i just can't see it because even when we had the second fitness hearing the reliance went back to the experts from the first that is hearing in which they said that there was a lesion meaning whether you were opposing counsel wants this opinion to be sure of a bright lin went to parents house there was a burglar alarm that went up there was a nine one one call there these hostages came out one by one this is four am this is certainly not the circumstance where he was aboard there anything along those lines but the point is that the gun itself the shooting of the defendant occurred after the climbs the crimes were completed and so whether it was cocked or not is simply not pertinent to the crime music defendant might be rendered unfit most of the time we think that that will come after trial on a due process inquiry and a due process challenge not before trial this is a unique case your honour's there was a discharge hearing so the trial court doesn't know the evidence that doesn't know the nature of the circumstances of what's going to what's coming and it doesn't know any of this information before trial and it's important that because  more and that something more was that the defendant couldn't follow the proceedings if you were sitting here today he couldn't follow from from what justice thomas said five minutes ago to what you're saying now and so he would be able to process that information he would be able to talk to his counsel about that information he would be able to recall it at all and so during the context of a trial and the question of fairness is whether defendant can function within the context of a trial he would have been able because he couldn't process anything he couldn't review the police reports and remember that information five minutes later that short term memory deficit was the reason the people stipulated to the unfitness determination and that's evidence by dr brave in its report which express this says that it's the short term memory deficit alcohol gunshot wound to the head car accident i mean these are the most there's one mostly you're looking at the elite you're not you're not segregated between time frames as to when  and the psychologist said we can't verify the actual length of time the defendant was still fit to go to trial and then there's other cases where the image is weak surrounding a crime and the defendants and their courts have found that there it took a trial i think and all of those are different seems to reason you're rendering section one or more six the relevant because there's several sections there and one of them is the defendant's ability to observe recollection relate the occurrences especially those concerning the incidents alleged and to communicate with counsel it's not just the trial procedures to remember what witnesses said five minutes later so that don't seem to be arguing that well we agree with that i know we agree that it's one factor in this case is the perfect example because initially he was on unfit because he had the amnesia as well as the short term memory loss and those companies still has an asian he still has the  section still is and he's only able to help but there are numerous cases from this court that have said that defendants for example attempts at suicide or defendants meant limited intellectual capacity or any number of reasons of what if he says gets a frantic whether he has a mental disease these all of these mental defects or diseases standing alone is not enough in these cases it will be easily as one of them and so what sure whether the defendant could regain his short term memory he said that there were recorded cases where defendants had been able to but he said no probability i mean your group says that there was no probability the defendant would regain his lost tiny was the ability to recall objects after five minutes initially defender was able to recall one out of thirty three objects after five minutes when dr mentone testified and about a year later he was able to recall three hundred three objects after five minutes it's also important the defendant attended the discharge hearing and he was able to for months later tell dr mentone about what happened at the discharge hearing evaluate the evidence talk about it i mean that the fact that he could listen to the testimony at the discharge hearing and then recount to evaluate it assess it i mean that's that shows that's demonstrated evidence that he actually the church member has proved perhaps miraculously and perhaps contrary to the gilbert written