Docket No. 83281–Agenda 2–May 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								ANTHONY MITCHELL, Appellant.

Opinion fileid d January 27, 2000.

	JUSTICE RATHJE delivered the opinion of the court:

	A jury convicted defendant, Anthony Mitchell, of two counts

of first degree murder. The same jury also determined that

defendant was eligible for the death penalty and that there were no

mitigating factors sufficient to preclude the imposition of the death

penalty. Accordingly, the circuit court of St. Clair County

sentenced defendant to death. 

	 On direct review, we affirmed defendant’s conviction and

sentence. People v. Mitchell, 152 Ill. 2d 274 (1992) (Mitchell I). The United States Supreme Court denied defendant’s petition for

a writ of certiorari. Mitchell v. Illinois, 508 U.S. 962, 124 L. Ed. 2d 685, 113 S. Ct. 2936 (1993). On December 7, 1993, defendant

filed a petition for post-conviction for relief, and on May 16, 1996,

defendant filed an amended petition. The State moved to dismiss

the amended petition without an evidentiary hearing. Defendant

then filed three additional claims for post-conviction relief, based

on this court’s decisions in People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Nitz, 173 Ill. 2d 151 (1996). The court allowed the State’s motion to dismiss to stand against the

additional counts. The court granted the State’s motion to dismiss,

and this appeal followed. Because the judgment challenged in

defendant’s petition imposed a sentence of death, the appeal was

taken directly to this court. 134 Ill. 2d R. 651(a).

	BACKGROUND

	Defendant’s convictions arose from the stabbing deaths of

teenagers David and Dawn Lieneke in July 1989. The facts

detailing the crime and the investigation leading to defendant’s

arrest are set out in our original opinion, and we provide only a

brief summary here. Additional facts will be noted where necessary

to address the particular arguments defendant raises.

	David and Dawn lived with their grandparents. On the evening

of July 4, 1989, their grandparents were out playing bingo. The

grandparents returned home at approximately 10:30 p.m. and

found David’s and Dawn’s dead bodies. Eighteen-year-old David

was lying in a pool of blood in the hallway. He had been stabbed

seven times. The wounds were large and deep, and David had died

from blood loss caused by a stab wound to the liver and from the

collapse of both lungs, due to a stab wound to his chest. Thirteen-

year-old Dawn was lying in a pool of blood on her grandmother’s

bed. She also had seven stab wounds in her body, including one

that went through the right temple and penetrated her brain. Dawn

bled to death from knife wounds to the aorta and liver.

	The police located defendant by tracing the license plate

number of his sister’s car. Defendant had been driving that car on

the night of the murders. Witnesses had spotted the car at the

scene. Defendant confessed to the crime, explaining that he had

gone to the Lieneke’s house looking for Viroon Williams, whom

defendant claimed had tried to run him down with a car the day

before and who had stolen a VCR, radio, and video game from

defendant’s mother’s house. Williams sometimes stayed with the

Lienekes. Defendant went into the house and stabbed David, and

then killed Dawn when she screamed his name and ran into the

bedroom. David was still alive and was threatening to tell Williams,

so defendant stabbed him again.

	In addition to defendant’s confession, the State relied upon the

testimony of Maurice Douglas, who was with defendant on the

night of the murders. Defendant showed the bloody knife to

Douglas and told him that he had just killed two persons. The

police recovered the murder weapon–a survival knife–from

defendant’s basement. The knife had blood on it, and the blood

was consistent with a mixture of David’s and Dawn’s blood. The

police also recovered black clothes and a pair of two-toed shoes.

Blood on a pair of pants recovered from defendant’s basement was

consistent with Dawn’s blood. One of the two-toed shoes matched

a shoe print that was left in the mud near where defendant’s sister’s

car was seen parked in the victims’ neighborhood. 	

	Defendant testified and denied any involvement in the crime.

Defendant’s testimony suggested that Williams was the murderer. Defendant denied owning the clothes or the knife, but said that

Williams had an outfit like the one recovered and that he had seen

Williams with the knife. Defendant denied showing the knife to

Douglas or saying that he killed two persons. Defendant testified

that the police made him sign the confession by raising their voices.

	Defendant was convicted of the murders and sentenced to

death. After his convictions and sentence were affirmed by this

court and his petition for a writ of certiorari to the United States Supreme Court was denied, defendant filed a post-conviction

petition. As twice amended, defendant’s post-conviction petition

contained 28 counts. Eleven counts, however, restated

constitutional arguments that were rejected on direct appeal. In

dismissing the petition without an evidentiary hearing, the trial

court ruled that the majority of defendant’s claims were barred by

waiver and res judicata. As to defendant’s claims of ineffective assistance of counsel, the court ruled that defendant had not made

a substantial showing that his constitutional rights had been

violated.

	The trial court found merit to one of defendant’s claims based

on Brandon and Nitz. Defendant argued that at the time of his trial and sentencing he was taking two medications to control his

epilepsy–Depakote and Phenobarbital–and that these medications

were psychotropic. Defendant contended he was denied due

process when he did not receive a fitness hearing and that he

received the ineffective assistance of counsel when his trial and

appellate attorneys failed to invoke his right to such a hearing. The

trial court agreed that Depakote was psychotropic medication and

that defendant therefore would have been entitled to a fitness

hearing. See Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a); Brandon, 162 Ill. 2d 450. However, the trial court ruled that defendant could

not prevail on this claim because he was seeking to benefit from the

retroactive application of a “new rule” announced in Brandon.1 The court based its analysis on Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); and People v. Flowers, 138 Ill. 2d 218 (1990), which held that, except in certain limited

situations, new constitutional rules of criminal procedure are not

applied retroactively to cases pending on collateral review.

Accordingly, the trial court dismissed defendant’s petition without

an evidentiary hearing. Defendant raises six issues on appeal.

ANALYSIS

Standard of review

	A petition filed pursuant to the Post-Conviction Hearing Act

(the Act) (725 ILCS 5/122–1 et seq. (West 1998)) is a collateral attack on a prior conviction and sentence. People v. Mahaffey, 165 Ill. 2d 445, 452 (1995). To obtain relief under the Act, a defendant

must establish a substantial deprivation of federal or state

constitutional rights in the proceedings that produced the

judgement being challenged. 725 ILCS 5/122–1(a) (West 1998); People v. Tenner, 175 Ill. 2d 372, 378 (1997).

	An evidentiary hearing on the petition is required only when

the allegations of the petition, supported by the trial record and the

accompanying affidavits, make a substantial showing of a violation

of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 428 (1998). For the purpose of determining whether to grant an

evidentiary hearing, all well-pleaded facts in the petition and in the

supporting affidavits are to be taken as true. People v. Caballero, 126 Ill. 2d 248, 259 (1989). If the circuit court determines that the

petition should be dismissed without an evidentiary hearing, its

judgment is subject to de novo review. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). 

Psychotropic Medication

	Defendant argues that he was denied due process when he did

not receive a hearing to determine his fitness for trial while under

medication. The statute in effect at the time of his trial provided, in

part, as follows: 

			“A defendant who is receiving psychotropic drugs or

other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication.”

Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a). 

Defendant further argues that he received the ineffective assistance

of counsel when his trial attorney failed to invoke his right to a

fitness hearing and when his counsel on direct appeal failed to raise

the due process and ineffective assistance of counsel arguments as

they related to his failure to receive a section 104–21(a) fitness

hearing.

	The factual basis for defendant’s claim, as provided in his

post-conviction petition and the accompanying affidavits, is as

follows. Defendant has suffered from epilepsy since the age of six,

when he suffered a head injury. To control his seizures, defendant

has been taking medications for many years. During his trial and

sentencing, defendant’s epilepsy medications were Depakote and

Phenobarbital. The trial court was aware that defendant was taking

medication for epilepsy.

	The Physicians’ Desk Reference categorizes Depakote as an

“antimanic agent,” which is a subcategory of “psychotherapeutic

agents.”2 Physicians’ Desk Reference 215 (53d ed. 1999) (PDR). Defendant attached to his petition the affidavit of Dr. James

O’Donnell, a pharmacology consultant. O’Donnell states in the

affidavit that Depakote and Phenobarbital are both central nervous

system depressants that are prescribed to prevent epileptic seizures.

O’Donnell lists the probable side effects of the drugs as “sedation,

hallucinations, dizziness, incoordination, depression, emotional

changes and behavioral deterioration, psychosis and aggression.”

O’Donnell further states that “[t]he combination of the effects of

both of these drugs can cloud the sensorium (alter the ability to

think clearly) and thus effect [sic] any individual’s ability to make certain decisions.” O’Donnell concludes that “[t]he overall sedative

effect may have caused Mr. Mitchell to appear too relaxed or too

detached during court proceedings.”

	Before deciding the merits of defendant’s arguments, we

address the State’s contention that Phenobarbital and Depakote are

not psychotropic medications. In People v. Britz, 174 Ill. 2d 163, 198 (1996), we adopted the definition of “psychotropic

medications” found in the Mental Health and Developmental

Disabilities Code: 

			“ ‘Psychotropic medication’ means medication whose

use for antipsychotic, antidepressant, antimanic,

antianxiety, behavioral modification or behavioral

management purposes is listed in AMA Drug Evaluations,

latest edition, or Physicians’s Desk Reference, latest

edition, or which are administered for any of these

purposes.” 405 ILCS 5/1–121.1 (West 1998).

We further relied on the definition given by the United States

Supreme Court in Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990): 

		“[P]sychotropic drugs are ‘medications commonly used in

treating mental disorders such as schizophrenia,’ the effect

of which is ‘to alter the chemical balance in the brain, the

desired result being that the medication will assist the

patient in organizing his or her thought processes and

regaining a rational state of mind.’ “ Britz, 174 Ill. 2d at 198, quoting Washington, 494 U.S. at 214, 108 L. Ed. 2d at 193, 110 S. Ct. at 1032.

	The trial court found that Depakote was a psychotropic drug,

but that Phenobarbital was merely “an anticonvulsant barbiturate.”

We agree that Depakote falls within the purview of section

104–21(a)’s reference to “psychotropic drugs or other

medications.” Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a).

Depakote is listed in the PDR as a psychotherapeutic antimanic

agent and thus clearly falls within the Britz definition. Further, Dr. O’Donnell stated in his affidavit that the combination of Depakote

and Phenobarbital could affect the individual’s ability to think

clearly and to make certain decisions. We thus agree with

defendant that his ingestion of Depakote would have entitled him

to a fitness hearing under section 104–21(a). This conclusion

renders unnecessary a discussion of whether Phenobarbital fits the Britz definition. 

	Our decision is not in conflict with People v. Kidd, 175 Ill. 2d 1 (1996), another case in which a defendant argued that his

epilepsy medication was a psychotropic drug. In Kidd, the defendant was taking Dilantin to control his seizures. We applied

the Britz definition and held that Dilantin was not psychotropic medication because its use for psychotropic purposes was not

listed in the PDR or the AMA Drug Evaluations. Further, it was

not being administered to the defendant for psychotropic purposes.

Kidd, 175 Ill. 2d at 17-19. By contrast, Depakote is listed in the PDR as a psychotherapeutic antimanic medication, and thus falls

squarely within the Britz definition.

	We turn now to the merits of defendant’s arguments.

Defendant argues that the trial court erred in finding that Brandon could not be applied retroactively to cases pending on collateral

review, and points out that Nitz and People v. Neal, 179 Ill. 2d 541 (1997), were both cases in which this court applied Brandon in post-conviction cases. The State counters that it did not raise the Flowers/Teague retroactivity rule in those cases and therefore this court has not yet ruled on this issue. According to the State, the

Flowers/Teague rule bars application of Brandon to petitioner’s case. We need not address this issue, however, as we believe that

the dismissal of defendant’s psychotropic medication claims was

proper for other reasons.

Due Process

	We first address defendant’s argument that he was denied due

process when he did not receive the fitness hearing to which he

was entitled. Petitioner’s claim–that denial of a section 104–21(a)

fitness hearing is a denial of due process–has its genesis in Nitz. In Nitz, the defendant raised a Brandon issue for the first time in a post-conviction petition. The State argued that Brandon was not applicable because the defendant did not argue that he received the

ineffective assistance of counsel. Thus, the defendant’s claim was

lacking a constitutional foundation. We rejected the State’s

argument and held that the court’s failure to follow the relevant

statutory procedures resulted in a due process violation to the

defendant. Nitz, 173 Ill. 2d at 160-61.

	The reasoning in Nitz was as follows. The due process clause of the fourteenth amendment prohibits the prosecution of a

defendant who is unfit for trial. U.S. Const., amend. XIV; Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992). Where information raises the possibility that an accused is

incompetent, the failure to inquire concerning competency violates

the accused’s due process rights. Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966) (holding that the Illinois

court’s failure to invoke the relevant statutory procedures deprived

the defendant of an inquiry concerning his fitness to stand trial, and

defendant therefore suffered a due process violation). The relevant

statute–section 104–21(a)–provides for a fitness hearing, and

therefore the court’s failure to invoke it denied defendant an

inquiry into his fitness for trial and consequently denied him due

process. Nitz, 173 Ill. 2d at 155-61.

	Nitz correctly recognized that due process does not mandate a particular procedure for an inquiry into fitness; it requires only

that there be an adequate procedure to implement the right to an

inquiry. Nitz, 173 Ill. 2d at 160, citing Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). Nitz further correctly recognized that the particular procedures to be invoked are purely

by legislative design and that the right to a particular procedure is

wholly statutory. Nitz, 173 Ill. 2d at 160.

	Although we recognized in Nitz that defendant’s right to section 104–21(a)’s procedure was wholly statutory, we reached

the somewhat contradictory conclusion that the trial court’s failure

to invoke the statute denied defendant due process. The relevant

passage in Nitz is our conclusion that, “Here, as in Pate, because no procedure was invoked, defendant was denied inquiry into the

issue of his fitness. Due process was thereby denied.” Nitz, 173 Ill. 2d at 161. This conclusion does not follow from the recognition

that the particular procedure to be invoked is purely by legislative

design and that defendant’s right to that procedure is wholly

statutory. Three members of the court dissented in Nitz, on the basis that a defendant’s right to a section 104–21(a) fitness hearing

was statutory and that the court was creating a constitutional

deprivation where none existed. See Nitz, 173 Ill. 2d at 165-66 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). The dissent concluded that defendant’s petition (which did not argue

ineffective assistance of counsel) should have been dismissed

because it lacked a constitutional foundation. After careful

consideration and reevaluation, we have determined that the

dissent’s position in Nitz was correct and that this court erred in holding that a denial of a section 104–21(a) fitness hearing was in

and of itself a due process violation.

	In Nitz, we failed to distinguish the United States Supreme Court’s decision in Pate. In that case, the Supreme Court held that the defendant should have received a fitness hearing because the

evidence introduced on his behalf established a bona fide doubt of his fitness. Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The court’s failure to inquire into the defendant’s fitness in

the face of evidence establishing a bona fide doubt of his fitness deprived the defendant of his constitutional right to a fair trial.

Pate, 383 U.S. at 385, 15 L. Ed. 2d at 822, 86 S. Ct. at 842. The Supreme Court later explained its Pate holding in Drope:

			“In Pate v. Robinson, 383 U.S. 375[, 15 L. Ed. 2d 815, 86 S. Ct. 836] (1966), we held that the failure to observe

procedures adequate to protect a defendant’s right not to

be tried or convicted while incompetent to stand trial

deprives him of his due process right to a fair trial.

Although in Robinson we noted that Illinois ‘jealously guard[ed] this right,’ id., at 385, we held that the failure of the state courts to invoke the statutory procedures

deprived Robinson of the inquiry into the issue of his

competence to stand trial to which, on the facts of the case, we concluded he was constitutionally entitled. The Court did not hold that the procedure prescribed by Ill.

Rev. Stat., ch. 38, §104–2 (1963), was constitutionally

mandated, although central to its discussion was the

conclusion that the statutory procedure, if followed, was

constitutionally adequate. [Citations.] Nor did the Court prescribe a general standard with respect to the nature or

quantum of evidence necessary to require resort to an

adequate procedure. Rather, it noted that under the Illinois

statute a hearing was required where the evidence raised

a ‘ “bona fide doubt” ‘'’ as to a defendant’s competence, and the Court concluded ‘that the evidence introduced on

Robinson’s behalf entitled him to a hearing on this issue.’ “

(Emphasis added.) Drope, 420 U.S. at 172–73, 43 L. Ed. 2d at 113-14, 95 S. Ct. at 904.

	Thus, Drope clearly recognized that Illinois’ statutory procedure–requiring a fitness hearing when there is a bona fide doubt of defendant’s fitness–was constitutionally adequate to

safeguard a defendant’s due process right not to be tried or

convicted while unfit to stand trial. The Supreme Court did not

hold, as Nitz implies, that the failure to follow any statute concerning a defendant’s fitness for trial deprives a defendant of

due process. See Nitz, 173 Ill. 2d at 160-61. Under the Nitz rationale, if the legislature passed a statute entitling defendants who

watch professional wrestling to a hearing on their mental fitness,

the court’s failure to follow the statute would be a denial of due

process. This cannot be so. As Nitz correctly recognized, “due process does not mandate any particular procedure for the inquiry;

it requires merely that there be an adequate procedure to

implement the right to an inquiry.” Nitz, 173 Ill. 2d at 160.

	The United States Supreme Court has determined the

constitutional adequacy of the Illinois statutory scheme of requiring

a fitness hearing when there is a bona fide doubt of defendant’s fitness. Thus, Illinois has in place procedures that are

constitutionally adequate to protect a defendant’s due process right

not to be tried while unfit.3 Due process does not require that everyone taking “psychotropic or other medication” under medical

direction should be granted a fitness hearing. Section 104–21(a)’s

provision is merely a statutory right granted by the legislature–a

right that the legislature has now taken away. See 725 ILCS

5/104–21(a) (West 1998). Statutes do not confer constitutional

rights, and the allegation of a deprivation of a statutory right is not

a proper claim under the Act. People v. Orndoff, 39 Ill. 2d 96, 99 (1968). The Illinois statutory scheme for determining fitness

comports with due process with or without section 104–21(a)

fitness hearings. Nitz’s conclusion that a defendant may raise in a post-conviction petition a denial of a section 104–21(a) fitness

hearing as a denial of due process was erroneous, and we hereby

overrule Nitz. 

	Nitz’s conclusion was largely based on this court’s continued equating of a defendant’s ingestion of psychotropic medication

with a bona fide doubt of defendant’s fitness. This position has its genesis in Brandon, although it was not specifically articulated until People v. Gevas, 166 Ill. 2d 461 (1995). In Brandon, we stated that section 104–21(a) “evinces a recognition by the General

Assembly that psychotropic medication is an important signal that

a defendant may not be competent to stand trial.” Brandon, 162 Ill. 2d at 457. In Gevas, we specifically stated that, “The legislature has equated the administering of psychotropic medication to a

defendant with a bona fide doubt as to fitness to stand trial.” Gevas, 166 Ill. 2d at 469. Three members of this court have taken the position that the right to a fitness hearing in section 104–21(a)

cannot be equated with a bona fide doubt of a defendant’s fitness and is much broader than the constitutional right with which it is

mistaken. People v. Birdsall, 172 Ill. 2d 464, 482 (1996) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). These

justices have pointed out that, under section 104–21(a), a

defendant taking psychotropic or other medication is entitled to a

fitness hearing “even in the absence of evidence that might

otherwise trigger an inquiry into the separate constitutional right.”

Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). As previously stated, section

104–21(a) merely contained a statutory right conferred by the

legislature. The legislature has now rewritten the statute to remove

that right. If the right was constitutional, the legislature could not

have eliminated it.

	This court’s prior determination that the legislature equated

the ingestion of psychotropic medication with a bona fide doubt of defendant’s fitness was simply erroneous. Section 104–11(a) of the

Code of Criminal Procedure of 1963 (the Code) (725 ILCS

5/104–11(a) (West 1998)) provides, in part, that “[w]hen a bona

fide doubt of the defendant’s fitness is raised, the court shall order

a determination of the issue before proceeding further.” Section

104–21(a), at the relevant time, provided that “[a] defendant who is receiving psychotropic drugs or other medications under medical

direction is entitled to a hearing on the issues of his fitness while

under medication.” Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a). 

	The wording of these provisions is significant. The first places

a mandatory burden on the trial judge to order a determination of

a defendant’s fitness when a bona fide doubt of that fitness is raised. See People v. Reed, 177 Ill. 2d 389, 393 (1997) (“use of the word ‘shall’ is generally considered to express a mandatory

reading”); Black’s Law Dictionary 1375 (6th ed. 1990) (“[a]s used

in statutes, contracts, or the like, [shall] is generally imperative or

mandatory”). The second provision merely provides that a

defendant taking psychotropic or other medication under medical

direction is entitled to a fitness hearing. The word “ ‘entitled’ “

means “ ‘to give a right or legal title to’ “ (Brandon, 162 Ill. 2d at 461, quoting Black’s Law Dictionary 532 (6th ed. 1990)), or “[t]o

qualify for; to furnish with proper grounds for seeking or claiming”

(Black’s Law Dictionary 532 (6th ed. 1990)). See also People v. Tilson, 108 Ill. App. 3d 973, 977 (1982) (“the word ‘entitled’ signifies the granting of a right or privilege to be exercised at the

option of parties for whose benefit it is used; it is directly opposed

to the idea of imposing an obligation or limitation”). Section

104–21(a) does not, as does section 104–11, require the trial judge

to make a further inquiry when certain facts are brought to his

attention. Rather, it gives the defendant the “proper grounds for

seeking or claiming” a fitness hearing. As Justice Miller has stated,

“While section 104–21(a) declares that a defendant receiving

psychotropic drugs is entitled to a fitness hearing, the statute does

not establish a defendant’s incompetency, say that a hearing must

be held if the defendant refuses one, or excuse counsel’s failure to

request a hearing in a timely manner.” Gevas, 166 Ill. 2d at 473 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.); see

also People v. Kinkead, 168 Ill. 2d 394, 419 (1995) (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.) (“[t]o say that

a defendant is ‘entitled’ to a fitness hearing is much different from

saying that a hearing is absolutely required in all circumstances, no

matter how tardy the defendant’s request might be”). We erred in Gevas when we stated, and in Brandon when it implied, that the legislature equated the administering of psychotropic medication to a defendant with a bona fide doubt as to his fitness to stand trial, and we no longer adhere to that conclusion.

Ineffective Assistance of Counsel

	Defendant also argues that he received the ineffective

assistance of counsel when his trial and appellate attorneys failed

to invoke his right to a section 104–21(a) fitness hearing. We first

address whether defendant received the ineffective assistance of

appellate counsel when his attorney failed to argue on direct appeal

that he was denied due process when the trial court failed to hold

a section 104–21(a) fitness hearing. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1)

counsel’s performance was so seriously deficient as to fall below

an objective standard of reasonableness under prevailing

professional norms, and (2) the deficient performance so prejudiced

the defendant as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). As applied to claims involving the failure of appellate counsel to raise a particular issue, the defendant must show that the

failure to raise the issue was objectively unreasonable and that, but

for this failure, a reasonable probability exists that the sentence or

conviction would have been reversed. People v. Mack, 167 Ill. 2d 525, 532 (1995). Appellate counsel is not obligated to brief every

conceivable issue on appeal, and it is not incompetence of counsel

to refrain from raising issues that in his judgment are without merit.

People v. Whitehead, 169 Ill. 2d 355, 381 (1996).

	Defendant cannot meet the first prong of the Strickland test in arguing that appellate counsel should have argued that he was

denied due process when the court failed to hold sua sponte a fitness hearing when it found out that defendant was taking

psychotropic medication. As thoroughly set out earlier in this

opinion, defendant’s right to a fitness hearing under section

104–21(a) is a statutory rather than a constitutional right. At the

time of defendant’s direct appeal, no Illinois court had held that a

trial court’s failure to order sua sponte a section 104–21(a) fitness hearing deprived a defendant of due process. Defendant’s attorney

therefore would have had no reason to believe that this court was

about to reach that conclusion. Further, existing case law would have indicated that the argument was meritless. See Balfour v. Haws, 892 F.2d 556 (7th Cir. 1989); People v. Lopez, 216 Ill. App. 3d 83 (1991); People v. Balfour, 148 Ill. App. 3d 215 (1986); People v. Tilson, 108 Ill. App. 3d 973 (1982). Clearly defendant’s attorney’s decision not to raise this issue on direct appeal was not

objectively unreasonable. 

	We next address whether trial counsel was ineffective for not

requesting a fitness hearing and whether appellate counsel was

ineffective for failing to argue trial counsel’s ineffectiveness in not

requesting a fitness hearing. We must first consider the relevant

standard for assessing claims of ineffective assistance of counsel for

failing to request section 104–21(a) fitness hearings. In Brandon, we cited the Strickland standard, but then held that a defendant could meet the prejudice prong of Strickland merely by showing that, if his attorney would have requested a fitness hearing, he

would have gotten one. Brandon, 162 Ill. 2d at 458-59. This was an unwarranted modification of the Strickland rule. 

	To establish prejudice under Strickland a defendant must show a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. As the Brandon dissent correctly noted, “the relevant inquiry in this case is not whether a fitness hearing would have been

conducted if defense counsel had requested one under section

104–21(a), but whether the outcome of the hearing would have

been favorable to the defendant, that is, whether the defendant

would have been found unfit to stand trial. The majority, by

considering only whether a fitness hearing would have been held

(Brandon, 162 Ill. 2d at 457-59), simply presumes the existence of prejudice in certain circumstances in which such a presumption is

not warranted.” Brandon, 162 Ill. 2d at 462-63 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.) 

	Clearly, defining the test as whether a defendant would have

received a fitness hearing cannot be correct. If a defendant would

have been found fit to stand trial, he suffered no prejudice by not

having a fitness hearing. The correct test for evaluating prejudice

in these situations is whether a reasonable probability exists that,

if defendant would have received the section 104–21(a) fitness hearing to which he was entitled, the result of the proceeding

would have been that he was found unfit to stand trial. Brandon is overruled.

	We now consider whether defendant’s trial attorney was

ineffective for failing to request a hearing. We will not find this

claim waived for defendant’s failure to raise it on direct appeal

because it depends on facts outside the original trial record. See

Whitehead, 169 Ill. 2d at 372. After carefully reviewing the record and the evidence attached to the post-conviction petition, we

cannot say that there was a reasonable probability that defendant

would have been found unfit to stand trial.

	Under section 104–10 of the Code, a defendant is unfit for

trial “if, because of his mental or physical condition, he is unable to

understand the nature and purpose of the proceedings against him

or to assist in his defense.” Here, the record belies any claim that

defendant did not understand the nature of the proceedings or was

unable to assist in his defense. Defendant’s exchanges with the trial

judge do not display any confusion about the nature of the

proceedings, and defendant assisted in his defense by testifying in

his own behalf. Defendant testified to his whereabouts at the

relevant times, denied any involvement in the crime, and asserted

that his confession to the police was coerced. Defendant’s

testimony covered over 50 pages of the report of proceedings and

does not disclose any signs of confusion about the nature or

purpose of the proceedings. Similarly, defendant gave extensive

testimony in support of his motions to suppress statements and

evidence, and there is no indication that defendant did not

understand the nature or purpose of those proceedings. 

	In Kinkead, we downplayed the importance of a defendant’s trial court demeanor in determining fitness, stating that it

encouraged “unprincipled speculation into matters requiring

medical expertise.” Kinkead, 168 Ill. 2d at 411. This position fails to consider the fundamental purpose of a fitness hearing, which is

solely to determine a person’s ability to function within the context

of a trial. People v. Murphy, 72 Ill. 2d 421, 432 (1978). By statute, evidence on the following matters is admissible at a fitness hearing:

			“(1) The defendant’s knowledge and understanding of

the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants

in the trial process;

			(2) The defendant’s ability to observe, recollect and

relate occurrences, especially those concerning the

incidents alleged, and to communicate with counsel;

			(3) The defendant’s social behavior and abilities;

orientation as to time and place; recognition of persons,

places and things; and performance of motor processes.”

725 ILCS 5/104–16(b) (West 1998).

Defendant’s trial demeanor, as evidenced by the record, is clearly

relevant to these factors. Nothing in the record indicates that

defendant would be found unfit based on a consideration of these

factors. 

	We recognize that a trial judge cannot rely on trial demeanor

to dispense with a fitness hearing in the face of evidence of a bona fide doubt of defendant’s fitness (Pate, 383 U.S. at 385-86, 15 L. Ed. 2d at 822, 86 S. Ct. at 842), but that is not the issue here; there

is no evidence in the record suggesting a bona fide doubt of defendant’s fitness. The issue here is whether a reviewing court

should ignore relevant and compelling evidence of a defendant’s

fitness for trial when determining whether the outcome of a

statutory fitness hearing would have been favorable to defendant. 

	The evidence that defendant attached to his post-conviction

petition does not show a reasonable probability that defendant

would have been found unfit. First, it must be remembered that

defendant was not taking these medications for any underlying

psychiatric problems. He was merely taking them to control

seizures. Thus, the only real question is whether these medications

in and of themselves rendered defendant unfit for trial. O’Donnell’s

affidavit established that the combination of defendant’s

medications might have affected defendant’s ability to make certain

decisions. O’Donnell also believed that the medication may have

caused defendant to appear too relaxed or detached during court

proceedings. O’Donnell’s affidavit simply does not establish that

defendant would not have been able to understand the nature and

purpose of the proceedings or to assist in his defense. 

	Defendant also attached to his petition the affidavit of clinical

psychologist Michael M. Gelbort. In the affidavit, Gelbort testifies to defendant’s learning disability, difficulty in school, borderline

mental retardation, seizure disorder, and difficulty in processing

information. In light of the factors that a trial court considers in

determining fitness for trial, there is no reasonable probability that

defendant would have been found unfit based on Gelbort’s

testimony.

	The facts of this case are similar to Murphy. The issue in Murphy was whether there was a bona fide doubt of the defendant’s fitness such that the trial court should have ordered a

fitness hearing. In that case, psychiatric evidence established that

defendant was mentally retarded and could only “ ‘understand

simple procedures but not complicated ones or those having

abstract meanings.’ “ Murphy, 72 Ill. 2d at 426-27. The defendant had a limited vocabulary and could not read above the first-grade

level. However, the defendant testified in his own behalf, said that

he knew what an attorney was and understood that his attorney

was representing him, and read aloud from his signed statement

and said that he could read the whole thing. Murphy, 72 Ill. 2d at 429. The defendant had previously told the police that he

understood his Miranda rights. In holding that the record supported the trial court’s conclusion that no bona fide doubt of defendant’s fitness existed, we stated that the evidence showed “an

educable mentally handicapped young man who comprehended his

situation and recognized the nature and purpose of the proceedings

against him and the function of an attorney to represent him.

Defendant cooperated with [his attorney] in presenting his

defense.” Murphy, 72 Ill. 2d at 434-35. 

	The record and post-conviction affidavits show that defendant

was functioning at a higher level than the defendant in Murphy, fully understood the nature of the proceeding against him, and was

able to cooperate in his defense. There is no reasonable probability

that defendant would have been found unfit, and therefore

defendant’s trial counsel was not ineffective for failing to request

a fitness hearing. This conclusion also disposes of defendant’s

argument that appellate counsel was ineffective for failing to raise

this issue on direct appeal. 

	In sum, the right to a fitness hearing that used to be provided

for in section 104–21(a) was a statutory right. A defendant did not have a due process right to such a hearing, and trial courts had no

obligation to order sua sponte a section 104–21(a) fitness hearing if a defendant did not request one. Thus, in a post-conviction case,

the claim will be considered only if it is framed in the context of

ineffective assistance of counsel. To prevail on such a claim, a

defendant must show a reasonable probability that, if a section

104–21(a) fitness hearing would have been held, he would have

been found unfit to stand trial. 

	We are not unmindful of the import of today’s decision.

Normally, because of stare decisis considerations, we would continue to adhere to our established precedent, even if certain

members of this court disagreed with it. In this case, however, we

deem it appropriate to depart from stare decisis. We stated in Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994), that “stare decisis is the means by which courts ensure that the law will not merely change erratically, but will

develop in a principled and intelligible fashion.” No reasonable

observer of this court’s jurisprudence could argue that the law in

this area has been developing in a principled and intelligible

fashion. As Justice Harrison stated in 1998, “This court decided

People v. Brandon, 162 Ill. 2d 450 (1994), fewer than four years ago and has been running from it ever since.” Kinkead, 182 Ill. 2d at 348 (Harrison, J., specially concurring). 

	In 1995, we held that after a period of two years had passed

it would be impossible to conduct a meaningful hearing as to

defendant’s fitness at the time of trial and sentencing. Gevas, 166 Ill. 2d at 471. In 1996, we “rejected any notion that a nunc pro tunc determination of fitness can provide the necessary reliability.” Nitz, 173 Ill. 2d at 164. In 1997, we saw no problem with a retrospective fitness hearing conducted 15 years after defendant’s

trial and sentencing. Neal, 179 Ill. 2d at 553-56. In 1998, we held that the automatic reversal rule of Brandon had been replaced by the “case-by-case” approach and that a defendant could no longer

prevail on a request for a new trial simply by showing that he had

been taking psychotropic medications at the relevant time.

Kinkead, 182 Ill. 2d at 340. Although not clearly stated in Kinkead, it appears that retrospective fitness hearings are now the norm.

What was constitutionally forbidden three years ago is now compelled. This is not a principled and intelligible development of

the law. As Justice Heiple wrote when rejecting stare decisis in another situation, “explicitly overruling Brinkmann is not an ‘erratic’ change in the law. In the eighteen years since Brinkmann, every case interpreting Brinkmann, including today’s majority opinion, has eroded its holding. I would merely make explicit what

this court has done implicitly for the last eighteen years.”

McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 518 (1998) (Heiple, J., specially concurring).

	Our most important duty as justices of the Illinois Supreme

Court, to which all other considerations are subordinate, is to reach

the correct decision under the law. Our jurisprudence in this area

has become erratic and confused, and it all stems from an

erroneous statutory interpretation five years ago. Stare decisis should not preclude us from admitting our mistake, interpreting the

statute correctly, and bringing some stability and reason to this area

of the law. As Justice Frankfurter once observed, “Wisdom too

often never comes, and so one ought not to reject it merely

because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600, 93 L. Ed. 259, 264, 69 S. Ct. 290, 293 (1949) (Frankfurter, J., dissenting). The trial court correctly

dismissed defendant’s additional claims for post-conviction relief.

Ineffective Assistance of Counsel at the Suppression Hearing

Failure to Establish “Fruit of the Poisonous Tree”

	Defendant next argues that his attorney was ineffective at the

hearing on his motions to suppress evidence because he failed to

establish that the physical evidence recovered from defendant’s

basement was the fruit of his unlawful arrest. On direct appeal, we

held that defendant’s due process rights were violated by the trial

court’s failure to recall critical testimony by defendant that

defendant did not believe he was free to leave police custody.

However, we declined to remand the matter for a new suppression

hearing because we concluded that, even if the trial court would

find that defendant’s confession should have been suppressed, the

other evidence of defendant’s guilt was so overwhelming that

introduction of his confession was harmless error. Mitchell I, 152 Ill. 2d at 326. We further held that defendant had not established that the physical evidence recovered from defendant’s basement

was the “fruit of the poisonous tree.” Mitchell I, 152 Ill. 2d at 326- 27.

	Defendant argued on direct appeal that the physical evidence

recovered from his basement was the fruit of his illegal detention.

Defendant reasoned that he told the police that he was with

Maurice Douglas on the night of the murders. The police

questioned Douglas, and he told them where the murder weapon

was probably hidden. We held that the record did not establish that

Douglas told the police where the weapon was hidden and that

defendant’s argument was based solely on conjecture. Without

establishing that Douglas informed the police where defendant’s

Ninja equipment and the murder weapon were hidden, defendant

could not meet his initial burden of showing a connection between

his detention and the police’s finding that evidence.

	Defendant attached to his post-conviction petition the hearsay

affidavit of Gilbert Roberts, an investigator with the office of the

State Appellate Defender, who interviewed Douglas on November

19, 1993. In the affidavit, Roberts states that Douglas told him that

Douglas told the police where the murder weapon was probably

hidden. Defendant contends that he has now made the crucial

connection showing that the physical evidence was the fruit of his

unlawful detention and that his trial attorney was therefore

ineffective for failing to make the connection at the suppression

hearing.

	Assuming, without deciding, that one can obtain an evidentiary

hearing based upon inadmissable hearsay evidence, we find

defendant’s argument to be meritless. Under the Strickland standard, counsel’s performance need not be evaluated if it can be

shown that the defendant suffered no prejudice. People v. Albanese, 104 Ill. 2d 504, 527 (1984). To meet the prejudice prong of the Strickland test, a defendant must demonstrate “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We find defendant’s argument to be without merit

because we do not believe he has shown a reasonable probability

that the outcome of the suppression hearing would have been different if his attorney had made and argued the Douglas

connection. 

	We believe that if defendant would have argued the Douglas

connection, the State would have prevailed under the inevitable

discovery exception to the exclusionary rule. We recognize that,

ordinarily, if the State does not raise the inevitable-discovery

argument in the trial court, the argument will be considered

waived. People v. Holveck, 141 Ill. 2d 84, 98-99 (1990). In this case, however, there was no reason for the State to make that

argument at the suppression hearing because defendant did not

argue that the evidence was found only because defendant told the

police about Douglas. Defendant made that argument for the first

time on direct appeal, and the State then argued in its response

brief that the police would inevitably have discovered Douglas even

without defendant’s statement. The defendant argued in his direct

appeal reply brief that the State had waived this argument.

Defendant cannot argue that the State waived its right to reply to

an argument that defendant had not yet made. The State also made

this argument at the hearing on the motion to dismiss the post-

conviction petition, and hints at it, but does not develop it, in its

current appellate brief.4 We believe we can properly consider this argument because we are only determining what the probable

outcome of the suppression hearing would have been if defendant’s

attorney would have made the argument that defendant contends

he should have made. As the State raised inevitable discovery in

response to the Douglas argument the first time it was made, we

believe it is reasonably likely that the State would have made the

argument if defendant had first made the Douglas argument at the

suppression hearing.

	Under the inevitable-discovery exception to the exclusionary

rule, evidence that otherwise would be inadmissible may be

admitted if the prosecution can show that the evidence “ ‘would

inevitably have been discovered without reference to the police error or misconduct.’ “”" People v. Edwards, 144 Ill. 2d 108, 142 (1991), quoting Nix v. Williams, 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct. 2501, 2511 (1984). Professor LaFave has

stated that, “Circumstances justifying application of the ‘inevitable

discovery’ rule are most likely to be present if *** investigative

procedures were already in progress prior to the discovery via

illegal means.” 5 W. LaFave, Search & Seizure §11.4(a), at 249

(3d ed. 1996).

	Here, before defendant was taken to the police station, the

police were looking for a car that had been seen near where the

murders occurred. The police had the car’s license plate number

and knew that two black males were seen in the car. The police

traced the car to defendant’s sister and learned that defendant had

been driving the car the night before. The police also spoke to

defendant’s mother, who knew that defendant and Douglas were

together the night of the murders. Defendant and Douglas and been

friends since they were five years old. Douglas’ father also knew

that defendant and Douglas were together on the night of the

murders. Considering the above evidence, we simply cannot accept

defendant’s contention that the police would not have found out

that Douglas was with him the night of the crime if they had not

illegally detained him. Before the police detained defendant, they

knew he had been in the car and that there was another black male

in the car. Given that a thorough investigation into the violent

murder of two teenagers was underway, that defendant and

Douglas were friends, and that the police were speaking to people

who knew that Douglas and defendant had been together that

night, we believe that it was inevitable that the police would have

found Douglas even if defendant had not told them that Douglas

was the person who was with him. 

	Defendant has not shown that the trial court erred in failing to

suppress the physical evidence recovered from his basement.

Assuming that the trial court would have ruled that defendant’s

confession should have been suppressed, there is no reasonable

probability that the court would have also ordered the physical

evidence suppressed. If defendant’s attorney would have argued

that the police only learned of that evidence through Douglas, and

the police only learned about Douglas through defendant’s confession, there is a reasonable probability that the State would

have argued the inevitable-discovery rule. We believe the State

would have prevailed in showing that the physical evidence should

not have been suppressed, even if the confession would have been.

Accordingly, defendant has not established that his trial attorney

was ineffective at the suppression hearing for failing to argue the

Douglas connection. The court correctly dismissed this count of

defendant’s post-conviction petition.

Failure to Establish that Defendant Would Not Have Been Able to Make a Valid Miranda Waiver

	Defendant next argues that his trial counsel was ineffective at

the hearing on the motion to suppress when he failed to introduce

evidence that would have helped to establish that defendant was

incapable of making a valid waiver of his Miranda rights. Defendant similarly raised a Miranda argument on direct appeal, but we declined to address it because we had already determined

that, assuming defendant’s confession should have been

suppressed, its admission into evidence was harmless error.

Mitchell I, 152 Ill. 2d at 330.

	Defendant tries to revive the Miranda argument by relying on post-conviction affidavits that he believes help to establish that he

would have been unable to make a knowing, voluntary, and

intelligent waiver of his Miranda rights. Just as we held on direct appeal, however, the Miranda issue is irrelevant given our determination that any error in the admission of defendant’s

confession was harmless. Defendant suggests that the jurors would

have given less weight to his confession if they had been apprised

of the degree of his intellectual defects. We fail to see how this

contention affects our conclusion on direct appeal that all of the

remaining evidence, absent defendant’s confession to the police, so

overwhelmingly established his guilt that any error in the admission

of his confession was harmless. Our holding on this issue in the

prior appeal is res judicata, and the trial court did not err in dismissing this count of defendant’s post-conviction petition.

Trial Court’s Refusal to Provide Funds for a Mitigation Expert

	Defendant next argues that he was denied due process when

the trial court denied his pretrial request for funds to hire a

mitigation expert to assist with the capital sentencing hearing. We

agree with the State that this claim is waived because it could have

been raised on direct appeal. Considerations of waiver and res judicata limit the range of issues available to a post-conviction petitioner to constitutional matters that have not been, and could

not have been, previously adjudicated. Tenner, 175 Ill. 2d at 378. Rulings on issues that were previously raised at trial or on direct

appeal are res judicata, and issues that could have been raised, but were not, are waived. People v. Coleman, 168 Ill. 2d 509, 522 (1995). Defendant argues that this claim is not waived because it

is based on evidence outside the original trial record. We disagree.

This exception to the waiver rule in post-conviction appeals refers

to those claims that could not have been considered by the

reviewing court on direct appeal because the claim’s evidentiary

basis was de hors the record. Whitehead, 169 Ill. 2d at 372. Defendant claims that, through the post-conviction affidavits of

people critical of the presentence investigation report, he has now

established that he was prejudiced by the trial court’s ruling. We

are unsure why defendant is discussing prejudice. The question

here is whether the trial court abused its discretion in denying

defendant’s request for appointment of a mitigation specialist. See People v. Burt, 168 Ill. 2d 49, 79 (1995). The evidence necessary to resolve that question is what was presented to the trial court at

the time the request was made.

	In the motion, defendant’s attorney claimed that neither he nor

the staff of the public defender’s office had the necessary skills to

prepare a life history of defendant. At the hearing on the motion,

defense counsel elaborated that the public defender’s office did not

have adequate staff to prepare a mitigation report dealing with

defendant’s schooling, his family and work histories, his medical

records, and his school records. However, defense counsel told the

court, “for the record, I’m aware of no–certainly there is no statute

or basis for this request. I’m not aware of any, and I also am not

aware of any case law in the circuit that allows the same, but, I

believe that this request is very important.” Defense counsel also maintained that he did not believe that the probation department

could do an adequate job. 

	The trial court denied the motion, and instead ordered the

probation and court services department of St. Clair County to

investigate defendant’s background and to prepare a report in the

nature of a presentence investigation report. The court also

ordered Cheryl Prost to conduct psychological examinations and

tests on defendant and to make the results available to the State,

defendant, and the court. The question is, in light of what defense

counsel represented to the trial court, did the court abuse its

discretion in denying the request for a mitigation expert? Defendant

preserved this issue in his post-trial motion, and argued it at the

hearing on the post-trial motion. There is no reason he could not

have made this argument on direct appeal. The argument does not

depend on the fact that defendant now has attached to his petition

what he considers to be better mitigating evidence. That was his

argument all along: that he needed funds to have someone conduct

an adequate investigation and that he would not be able on his own

to muster evidence of this quality. This was a routine abuse of

discretion argument that should have been presented on direct

appeal, as it was in Burt and People v. Lear, 143 Ill. 2d 138 (1991). Defendant has waived this argument, and the trial court

properly dismissed this count of the post-conviction petition.

Ineffective Assistance of Counsel: Failure to Investigate and

Present Mitigating Evidence

	Defendant next argues that he received the ineffective

assistance of counsel when his attorney failed to conduct an

adequate investigation of potential mitigating evidence and failed

to present this evidence at his capital sentencing hearing. As this

claim depends upon evidence outside the original trial record, it is

not waived for counsel’s failure to raise it on direct appeal. See

People v. Orange, 168 Ill. 2d 138, 149 (1995). 

	To prevail on a claim of ineffectiveness of counsel at

sentencing, a defendant must show that his attorney’s performance

fell below an objective standard of reasonableness and that, absent

counsel’s errors, there is a reasonable probability that the trier of

fact would have concluded that the balance of aggravating and mitigating factors did not warrant the death penalty. People v. Henderson, 171 Ill. 2d 124, 145 (1996). Counsel has a duty to make reasonable investigations of potential sources of mitigating

evidence to present at a capital sentencing hearing. People v. Towns, 182 Ill. 2d 491, 510 (1998). When made after a thorough investigation of the law and facts relevant to plausible options,

strategic choices of what evidence to present are virtually

unchallengeable. Towns, 182 Ill. 2d at 514; Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. Choices made after

less than complete investigation are reasonable to the extent that

reasonable professional judgments support the limitations on

investigation. Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Background

	We begin by reviewing the evidence presented at the

sentencing hearing. The State presented no evidence in

aggravation. Defendant presented three witnesses in mitigation.

The first person to testify was probation officer Michael Buettner,

who prepared a presentence investigation report of defendant.

Buettner testified that defendant was born on December 21, 1969.

Buettner also testified about defendant’s family members, giving

their ages and cities of residence. Defendant lived with his mother,

who provided his room and board. Buettner testified that defendant

attended school until the eighth grade and then dropped out.

Defendant received average to below-average grades. For part of

his education, defendant was enrolled in a home bound study

program, but Buettner did not know what that was.

	Buettner testified that defendant told him that he had worked

at “Bob’s Liquor Store,” but Buettner could not verify that such a

place existed. Defendant also claimed to have worked for a

company selling cable boxes, but Buettner could not verify that. In

the summer of 1986, defendant worked in a summer youth

program. 

	Buettner learned that defendant had epilepsy and verified that

defendant took Phenobarbital and Depakote. Defendant said that

in recent years he experienced seizures only twice a year while on

that medication. Buettner did not discover any history of alcohol or drug abuse by defendant. Defendant told Buettner that there was

no history of mental illness in his family. Defendant did not have an

adult criminal record, and had one delinquency incident when he

was 14 years old. At that time, defendant was charged with

burglary and placed on two years’ probation. Defendant

successfully completed the probation.

	Cheryl Prost, a psychological consultant for the 20th Judicial

Circuit, testified that she had been employed in that capacity for 19

years. Prost had a bachelor’s degree in psychology and a master’s

degree in clinical psychology. She had also completed a year of

doctoral work in psychology. She was ordered by the court to

evaluate defendant. The evaluation took place at the St. Clair

County jail and was conducted on days that defendant’s jury trial

was underway. Prost testified that she gave defendant the Wechsler

Adult Intelligence Scale tests, a short reading test, tests to

determine eye motor coordination and visual memory problems,

and a clinical analysis questionnaire.

	Prost testified that the testing conditions were not good. She

had to work around defendant’s trial, so the testing began as early

as 6:15 a.m., there were interruptions from jail guards, and there

was a lot of noise in the background. Defendant tried very hard to

pay attention to what was going on and to shut out the noise. Prost

believed that the test conditions might have caused defendant’s

scores on the Wechsler test and the reading test to be slightly lower

than they otherwise would have been. Prost discussed defendant’s

educational background with him and learned that he had been in

learning disability classes.

	Prost explained that the results of the Wechsler test showed

defendant’s verbal IQ to be 75, which is in the middle of the

borderline range of mental retardation. Defendant’s performance

IQ is 79, which is still in the borderline range of mental retardation,

but is close to the dull-average range. Defendant’s full scale IQ

score was 76, which is in the borderline range of mental

retardation. The range of mild mental retardation is 60 to 69.

Borderline mental retardation is 70 to 79, and dull average is 80 to

89.

	Prost elaborated on defendant’s defendant’s verbal IQ score,

explaining that it is based on six subtests. An average score on any of these tests would be a 10, and anything below a 7 would

indicate a serious problem area. Defendant’s scores were as

follows: 3 on the information subtest, which tests academic

information that one would pick up from being in class; 7 on the

digit span, which is remembering a series of numbers forwards and

backwards; 4 on vocabulary definitions; 6 on the arithmetic test; 8

on the comprehension section; and 5 on similarities, which

compares two objects and asks how they are the same. 

	Prost further testified about defendant’s reading difficulties.

She administered the Wide Range Achievement test, and it showed

that defendant’s reading level was fourth grade, first month.

According to Prost, a fifth grade reading level is normally

necessary to perform daily business. Defendant labored over the

clinical analysis questionnaire questions, but he seemed able to

comprehend them if given adequate time to do so. Defendant

tested negative for any visual memory impairment or dyslexia.

	Prost testified that the clinical analysis questionnaire, which

she administered to defendant, asks 148 true/false questions about

what a person is like or what types of experiences a person has.

Defendant scored highly on five out of the six scales for

depression. The tests showed that he felt anxiety and felt physically

unwell at times. Prost reiterated that defendant was instructed to

answer the questions based upon how he felt before he was

arrested. Prost testified that defendant’s answers on the clinical

analysis questionnaire showed that he was not having delusions,

hallucinations, or strange experiences. Prost’s psychological report

was admitted into evidence.

	Defendant’s mother, Irene Mitchell, testified that defendant

was 20 years old, the youngest of her six children. Defendant

always minded her when he was growing up and never talked back.

She had never had any discipline problems with defendant.

Defendant’s father, Aber Mitchell, had worked at Olin Brass in

East Alton, but the family was poor. Irene stayed home to raise the

children. Aber was now deceased, as were all of defendant’s

grandparents.

	Irene testified that defendant suffered from epilepsy.

Defendant suffered a head injury when he was around five years

old and was playing Superman with his brother. Defendant’s foot slipped, and he hit his head on the rail of the bed. Defendant

received stitches, and began having seizures seven months after the

incident. The seizures are ongoing, and defendant has been treated

for the seizures many times. Defendant initially took Dilantin for

the seizures, but it did not control them sufficiently. Defendant’s

medications were switched to “Depakene” and phenobarbital, and

these worked better.

	Irene testified that the children in the neighborhood loved

defendant because he “trained them to do flips, acrobats and things

like that, and they just love Anthony, all of them.” Defendant

trained his dog, Poochie, very well, and appeared on a TV show,

in which he demonstrated how he and his dog would do flips

together. 	

	Irene clarified that defendant’s juvenile conviction was for an

incident in which defendant and five other kids broke into an empty

house by going through a window. Defendant successfully

completed probation and had no other encounters with the legal

system.

	Defendant did volunteer work with senior citizens in East St.

Louis. He was going to school there for reading, and became good

enough to help out some of the senior citizens. Irene testified that

the senior citizens were crazy about defendant. Defendant attended

church regularly at the New Bethlehem church.

	Irene testified that defendant had learning difficulties and had

a home tutor for two years. Defendant was having seizures, and

Irene did not want him to miss too much school because his grades

were already bad. A tutor came to defendant’s home every day,

which was the home bound instruction to which Buettner referred.

Irene testified that, during that period, defendant missed a lot of

school because of his seizures.

	Irene further testified that defendant got along well with his

siblings and that he had close friends, some of whom testified on

his behalf during the trial. Defendant had recently worked at Bob’s,

which is a confectionary and variety store. The year before,

defendant had worked at the Chrysler plant in St. Louis. Defendant

was also taking courses at a police academy school in St. Louis;

defendant had passed a course to become a security guard.

	In the State’s closing argument, the assistant State’s Attorney

argued that none of defendant’s mitigating evidence was sufficient

to preclude the death penalty. The State pointed out that defendant

had had contacts with the criminal justice system, had not worked,

was borderline mentally retarded rather than mentally retarded, and

was not suffering from mental illness.

	The State acknowledged that it did not put on additional

aggravating evidence, but rather focused on the violent nature of

the crime. The assistant State’s Attorney noted that defendant

armed himself with a knife, went into the Lieneke’s trailer and

stabbed 18-year-old David, and then pursued 13-year-old Dawn

into the bedroom and stabbed her seven times as she cowered

under the covers with the telephone in her hand. He asked the jury

to consider the terror that would have gone through the victims’

minds, and that defendant’s attack upon them was unprovoked and

brutal.

	Defendant’s attorney began by reminding the jurors that if

even one of them felt there were mitigating factors sufficient to

preclude the imposition of the death penalty, the defendant’s life

could be spared and that he would be sentenced to a term of

natural life imprisonment. Defense counsel reminded the jury that

either sentence was very severe, and that at best the 20-year-old

defendant would be spending the rest of his life in prison. He

emphasized that the State had the opportunity to present additional

aggravating evidence but had not produced any.

	Defense counsel then asked the jury to consider that defendant

was mildly mentally retarded or borderline mentally retarded.

Defense counsel further argued that defendant was only 20 years

old and had a family who loved him.

	Defense counsel also pointed out that defendant’s one contact

with the criminal justice system occurred when he was 14 years old

and was not significant. Defense counsel went on to talk about

defendant’s seizure disorder, that defendant had grown up poor,

and had only a fourth-grade reading level. He emphasized that the

cumulative nature of this evidence, and that the alternative to death

was natural life imprisonment, showed that the death penalty was

not appropriate in this case.

Analysis

	Against this backdrop, we consider the additional mitigating

evidence that defendant now contends should have been presented.

Defendant first contends that the jury did not receive accurate and

comprehensive information about his intellectual functioning.

Defendant criticizes trial counsel’s reliance on Prost’s report.

Defendant relies on an affidavit from Dr. Michael Gelbort, who is

critical of Prost’s work in this case. Gelbort, a clinical psychologist,

tested defendant at the Menard correctional center and determined

that defendant’s verbal IQ was 73, his performance IQ was 75, and

his full scale IQ was 73. Gelbort determined that defendant’s math

skills were at a fourth-grade level and that his reading and spelling

skills were below the third-grade level. Gelbort characterized

defendant as having a severe language-based learning disability.

Gelbort concluded that defendant’s cognitive abilities were limited

and that, although defendant’s IQ scores showed that he was

borderline mentally retarded, his inability to read and his slowed

information-processing speed left him functioning more like

someone in the mildly to mild/moderately impaired range.

	We need not determine whether counsel’s performance was

objectively unreasonable under the first prong of the Strickland test, because defendant clearly cannot meet the second prong. The

jury was informed of defendant’s borderline retardation, and his

severe difficulties with reading and learning and did not find that

those factors mitigated against imposition of the death penalty.

There simply is no reasonable probability that, had the jury known

that defendant’s IQ score might have been three points lower, that

he actually read at below the third-grade level rather than at the

fourth-grade level, and that a psychologist believed that the

combination of his reading difficulties and low IQ left him

functioning more in the mildly impaired range, it would have

reached a different conclusion.

	Defendant next argues that counsel minimized his seizure

disorder to the point of insignificance and should have introduced

more evidence on how it affected his day-to-day life. The jury

learned that defendant had been suffering from epilepsy since he

was a young child, that he initially took Dilantin, and then switched

to Depakote and Phenobarbital when that was ineffective. Even with the Depakote and Phenobarbital, defendant was still suffering

seizures twice a year. Defendant had been treated many times for

his seizures, and they caused him to miss so much school that he

had to get a home tutor. We do not agree that defense counsel’s

evidence minimized defendant’s seizures to the point of

insignificance.

	Defendant claims that counsel should have introduced

testimony from defendant’s sisters, who could have testified about

what defendant’s seizures were like, how he had to be hospitalized

for them many times, and how he missed school because of them.

We believe this evidence would have been cumulative and there is

no reasonable probability that additional testimony on this matter

would have caused the jury to conclude that defendant’s epilepsy

was a mitigating factor sufficient to preclude the death penalty.

	Defendant also claims that defense counsel should have

introduced evidence such as that found in Gelbort’s report that

defendant sometimes had to go without his epilepsy medication as

a child when the family could not afford it. Defendant points out

that O’Donnell stated in his report that withholding medication in

an epileptic patient can cause anxiety and apprehension. As there

is no evidence that defendant was without his medication at or near

the time of the murders, we do not believe defendant has shown

there is a reasonable probability that the jury would have reached

a different result based on this evidence. 

	Defendant next contends that defense counsel was ineffective

for failing to introduce evidence that, because of his learning

disabilities and illnesses, defendant was victimized throughout his

youth. According to defendant’s brief, defendant was “continually

degraded, humiliated, and subjected to the violence of bullies, in

and out of school.” Defendant’s argument is based on the hearsay

statements of defendant’s friend, Eric Nicholson, which are

contained in a mitigation report prepared by social worker Jeffrey

Eno. According to Eno’s report, Nicholson told him that defendant

was laughed at by his peers and was picked on by other students.

Nicholson recalled an incident in which another student put a

choke hold on defendant. Nicholson also stated that defendant’s

second-grade teacher, Ms. Davis, viciously ridiculed defendant for

his inability to read up to grade level. Another childhood friend, Carlos Lumas, told Eno that other kids in the neighborhood picked

on defendant and asked him to spell the word “tree.” Defendant

told Eno that he was the target of gangs who would beat him up

and try to recruit him, but that he successfully resisted their efforts.

	On this issue we do not believe that defendant can meet the

first prong of the Strickland test. Defendant has not shown that counsel’s decision not to present evidence of defendant’s turbulent

childhood fell below an objective standard of reasonableness. As

we noted in People v. Sanchez, 169 Ill. 2d 472, 491 (1996), evidence of a violent and abusive childhood is not inherently

mitigating. Here, it appears that defense counsel’s strategy was to

portray defendant as a pleasant person who was well-liked, who

got along with other children in the neighborhood and taught them

to do acrobatic tricks, who had close friends, and who volunteered

his time to help others. It was not an objectively unreasonable

strategy for defense counsel to emphasize this evidence rather than

to portray defendant as an outcast and a loner who was picked on

and beaten up. Defendant has not shown that his attorney’s

performance in this regard fell below an objective standard of

reasonableness.

	Finally, defendant claims that the jury never received

information about defendant’s history of depression and “other

possible indicators of neurological/organic brain impairment.”

Defendant points out that Gelbort observed that defendant’s mood

was consistent with a reactive type of depression, and that, in

1983, defendant was diagnosed with childhood depression.

Defendant also argues that several factors indicated that he had a

neurological impairment, including a complicated birth, loss of

consciousness after a head injury, another incident of blunt head

trauma, possible lead intoxication, seizures, and a learning

disability.

	Again, defendant cannot meet the second prong of the

Strickland test. Defendant’s claim that the jury received no information about his depression is untrue. Prost testified that

defendant’s tests showed that he scored highly for depression on

five out of six scales, and that he suffered from anxiety. The

evidence also showed that defendant suffered from neurological

impairment. It was established that defendant suffered from epilepsy following a head injury, that he had a learning disability,

that he had difficulty reading, and that his IQ was in the borderline

range for mental retardation. The jury rejected these factors as

sufficiently mitigating to preclude the death penalty, and defendant

has not established a reasonable probability that additional evidence

on these matters would have changed that result.

	We have carefully considered all of the evidence that

defendant argues counsel was ineffective for not presenting in

mitigation at his capital sentencing hearing. Defendant cannot meet

both prongs of the Strickland test with any of this evidence. Accordingly, he has not made a substantial showing of the denial

of the right to the effective assistance of counsel, and the trial court

properly dismissed this count of the petition without an evidentiary

hearing.

Adequacy of Post-Conviction Representation

	Finally, defendant asks us to remand this cause to allow

different attorneys to replead his petition. According to defendant,

the petition’s shortcomings are such that it does not comply with

either Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), or the

right to a reasonable level of assistance (see People v. Flores, 153 Ill. 2d 264 (1992)). Defendant notes that his attorneys filed the

original petition on December 7, 1993, but asked for an extension

of time to complete additional investigation and discovery. Over

the next 21⁄2 years, the circuit court allowed the attorneys several

more extensions. They filed an amended petition on May 16, 1996,

that raised three new claims, and attached the mitigation report of

social worker Jeffrey Eno. However, the amended petition was

largely the same as the original petition, and the three new claims

covered barely more than two pages of the petition. Defendant

argues that it is now apparent that his attorneys did nothing for 21⁄2

years but wait for a mitigation report, and then failed to

incorporate adequately that report into the claims. 

	Defendant acknowledges that there is no sixth amendment

right to the effective assistance of counsel in state post-conviction

proceedings. Defendant’s right to counsel in post-conviction

proceedings is statutory, and that right is the right to a reasonable

level of assistance. Flores, 153 Ill. 2d at 276. Here, defendant’s attorneys clearly provided a reasonable level of assistance. They

filed a lengthy post-conviction petition raising 17 new claims of

deprivations of constitutional rights. The petition was supported by

47 exhibits. We not believe that their representation was

unreasonable merely because the only additional evidence they

came up with in 21⁄2 years was a mitigation report. 

	Defendant contends that his attorneys did not meet their

obligations under Rule 651(c). The State counters that Rule 651(c)

applies only to defendants who file pro se petitions and does not apply when the original petition is filed by an attorney. Here, the

provision of Rule 651(c) that defendant claims was not complied

with was the one requiring the petitioner’s claims to be shaped into

appropriate legal form. The clause defendant refers to is the one

requiring counsel to affirm that he “has made any amendments to

the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c). As

defendant did not file a pro se petition, his attorneys could not have violated that provision. Moreover, we find that petitioner’s claims

are in appropriate legal form.

	As a final matter, we note that defendant argues that counsel’s

deficiencies prejudiced him particularly with respect to his second,

third, and fourth appellate arguments. No additional evidence or

pleading would have helped defendant on these arguments. As to

the second appellate argument, even if it could have been

conclusively established that Douglas was the only person who told

the police where the items of physical evidence could be found, the

police would have inevitably spoken to Douglas and found that

evidence. Regarding the third argument, that argument is irrelevant

in light of our holding that any error in the admission of

defendant’s confession was harmless. Defendant waived the fourth

argument by failing to raise it on direct appeal. We decline

defendant’s invitation to remand this matter for repleading of the

post-conviction petition.

CONCLUSION

	Defendant’s post-conviction petition, supported by the

accompanying exhibits and the trial record, does not make a

substantial showing that defendant’s constitutional rights were violated. Accordingly, the court did not err in dismissing the

petition without an evidentiary hearing. The judgment of the circuit

court of St. Clair County is affirmed. The clerk of this court is

directed to enter an order setting Wednesday, May 24, 2000, as the

date on which the sentence of death entered in the circuit court is

to be imposed. Defendant shall be executed in the manner provided

by law (725 ILCS 5/119–5 (West 1996)). The clerk of this court

shall send a certified copy of the mandate in this case to the

Director of Corrections, the warden of Tamms Correctional

Center, and the warden of the institution where defendant is now

confined.

Judgment affirmed.

	JUSTICE MILLER, specially concurring:

	I join the majority opinion. I write separately to respond to

several points raised by the dissenting opinion in this case.

	Conspicuously absent from the dissent is any defense of

People v. Brandon, 162 Ill. 2d 450 (1994), and its progeny and their interpretation of section 104–21(a) of the Code of Criminal

Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a)).

Nowhere does the dissent attempt to support the Brandon line of cases on their merits, or to explain why or how what was purely a

statutory right became transmuted into a constitutional one. The

dissent instead invokes the doctrine of stare decisis as grounds for leaving the Brandon line of cases undisturbed.

	JUSTICE MILLER, specially concurring:

	I join the majority opinion. I write separately to respond to

several points raised by the dissenting opinion in this case.

	Notably, the dissent musters only a brief defense of People v. Brandon, 162 Ill. 2d 450 (1994), and its progeny, and their interpretation of section 104–21(a) of the Code of Criminal

Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a)).

The dissent offers no new analysis of the question and simply

perpetuates the erroneous premise of the Brandon line of cases by equating the statutory right found in section 104–21(a) with the

distinct constitutional right not to be tried while unfit, as embodied

in the due process clause. Too, the dissent takes issue with what it

insists are inconsistencies in the views of the justices who disagreed

with the Brandon rule and who questioned the court’s efforts to

transmute a statutory right into a constitutional one. What the

dissent’s lengthy discussion fails to mention, but is evident from

even a cursory reading of the earlier cases, is that the majority

opinions themselves evolved and changed focus, as the court

considered different aspects of the problems posed by its

application of the Brandon rule in different procedural contexts. The dissents to those decisions appropriately addressed the specific

factual settings in which the issue then happened to arise.

	In support of the Brandon rule, the dissent relies primarily on the doctrine of stare decisis as grounds for leaving that line of authority undisturbed. Our departure from stare decisis finds ample justification here, however. The earlier cases attest to the

continuing problems the Brandon rule produced as the court labored to provide the statutory right with a constitutional

foundation. Considerations of stare decisis should weigh little in these circumstances, where a misguided interpretation of a

procedural statute threatened to become a permanent and curious

feature of our constitutional law. Relevant here are the concerns

expressed by the Supreme Court in Payne v. Tennessee, , 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991), when it overruled

part of its four-year-old decision in Booth v. Maryland, , 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987), which had barred

the use of victim impact evidence at capital sentencing hearings.

The Court noted the importance normally played by stare decisis in our system of justice but also recognized that the doctrine does not mean that a precedent must remain forever frozen in the law:

		“Adhering to precedent ‘is usually the wise policy, because

in most matters it is more important that the applicable

rule of law be settled than it be settled right.’ [citation.]

Nevertheless, when governing decisions are unworkable or

are badly reasoned, ‘this Court has never felt constrained

to follow precedent.’ [Citation.] Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and

not a mechanical formula of adherence to the latest

decision.’ [Citation.] This is particularly true in

constitutional cases, because in such cases ‘correction

through legislative action is practically impossible.’

[Citation.] Considerations in favor of stare decisis are at their acme in cases involving property and contract rights,

where reliance interests are involved [citations]; the

opposite is true in cases such as the present one involving

procedural and evidentiary rules.” Payne, 501 U.S. at 827- 28, 115 L. Ed. 2d at 736-37, 111 S. Ct. at ___2609-10.

	As Payne instructs, the doctrine of stare decisis is not intended to permanently enshrine an incorrect rule of law, isolating

it forever from review and reconsideration. “Stare decisis is an important factor in the judicial process, but we must not forget that

it is not the whole process.” Nudd v. Matsoukas, 7 Ill. 2d 608, 615 (1956). The rule first announced by the court in Brandon and later applied in a variety of circumstances mistakenly confused a

statutory right with a constitutional right. It is not too late to

correct that erroneous interpretation. The surprising thing in all of

this is not that the court now decides to overrule Brandon and its progeny, but that those cases managed to survive as long as they

did.

	More specifically, the dissent takes issue primarily with the

majority’s observation, in support of overruling Brandon and the cases following it, that three members of this court consistently

dissented to those prior decisions. What the dissent’s lengthy

discussion fails to mention, however, and is evident from even a

cursory reading of the earlier cases, is that the majority opinions

themselves evolved and changed focus, as the court considered

different aspects of the problems posed by its application of the

Brandon rule in different procedural contexts. The dissents to those decisions appropriately addressed the specific factual settings

in which the issue then happened to arise.

	The earlier cases attest to the continuing problems the

Brandon rule produced as the court labored to provide the statutory right with a constitutional foundation. Considerations of stare decisis should weigh little in these circumstances, where a misguided interpretation of a procedural statute threatened to

become a permanent and curious feature of our constitutional law.

Relevant here are the concerns expressed by the Supreme Court in Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991), when it overruled part of its four-year-old decision

in Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529 (1987), which had barred the use of victim impact evidence

at capital sentencing hearings. The Court noted the importance normally played by stare decisis in our system of justice but also recognized that the doctrine does not mean that a precedent

must remain forever frozen in the law:

		“Adhering to precedent ‘is usually the wise policy, because

in most matters it is more important that the applicable

rule of law be settled than it be settled right.’ [Citation.]

Nevertheless, when governing decisions are unworkable or

are badly reasoned, ‘this Court has never felt constrained

to follow precedent.’ [Citation.] Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and

not a mechanical formula of adherence to the latest

decision.’ [Citation.] This is particularly true in

constitutional cases, because in such cases ‘correction through legislative action is practically impossible.’ [Citation.] Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are

involved [citations]; the opposite is true in cases such as the

present one involving procedural and evidentiary rules.” Payne, 501 U.S. at 827-28, 115 L. Ed. 2d at 737, 111 S. Ct. at 2609-10.

	As Payne instructs, the doctrine of stare decisis is not intended to permanently enshrine an incorrect rule of law, isolating

it forever from review and reconsideration. “Stare decisis is an important factor in the judicial process, but we must not forget that

it is not the whole process.” Nudd v. Matsoukas, 7 Ill. 2d 608, 615 (1956). The rule first announced by the court in Brandon and later applied in a variety of circumstances mistakenly confused a statutory right with a constitutional right. It is not too late to

correct that erroneous interpretation. The surprising thing in all of

this is not that the court now decides to overrule Brandon and its progeny, but that those cases managed to survive as long as they

did.

	JUSTICES BILANDIC and HEIPLE join in this special

concurrence.

	JUSTICE FREEMAN, dissenting:

	I respectfully dissent from the court’s decision to overrule

Brandon and its progeny.

	Prior to today, our case law had been settled as to what

remedy would be afforded to a defendant who was entitled, under

section 104–21(a) (Ill. Rev. Stat. 1989, ch. 38, par. 104–21(a)), to

a fitness hearing, but who did not receive one. Specifically, that

case law dictated that the failure to hold the hearing necessitated

reversal of the defendant’s convictions and remandment for further

proceedings, unless it could be established that defendant did not

suffer mental impairment as a result of his ingestion of

psychotropic medication. People v. Neal, 179 Ill. 2d 541 (1997); People v. Burgess, 176 Ill. 2d 289 (1997) (modifying People v. Brandon, 162 Ill. 2d 450 (1994)). This rule applied to cases on direct appeal as well as to those on collateral review. Neal, 179 Ill. 2d at 549 (modifying People v. Nitz, 173 Ill. 2d 151 (1996)). Indeed, the parties in this appeal have framed their contentions

regarding this issue in light of the principles set forth in these cases.

Neither defendant nor the State has, in this appeal, requested that

this court revisit the Brandon/Burgess rationale. The State only asks that this court consider the retroactivity of the above rule in

light of the retroactivity test announced by the United States

Supreme Court in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), and adopted by this court in People v. Flowers, 138 Ill. 2d 218 (1990). The court, however, states that it “need not address this issue, however, [because] the dismissal of

defendant’s psychotropic medication claims was proper for other

reasons.” Slip op. at 7. The “other reasons” alluded to in this

sentence eventually reveal themselves to be nothing other than the

court’s disregard of the doctrine of stare decisis. Contrary to the views expressed in today’s opinion, no legitimate reason exists in

this case that warrants a departure from stare decisis. I, therefore, believe that this court should continue to adhere to its established

precedent in this area.

I

	The term stare decisis is derived from the Latin phrase stare decisis et non quieta moevre, which translates “ ‘to stand by matters that have been decided and not to disturb what is

tranquil.’ ” J. Wallace, Stare Decisis and the Rehnquist Court: The Collision of Activism, Passivism and Politics in Casey, 42 Buff. L. Rev. 187, 189 (1994), quoting Dictionary of Foreign Phrases and

Abbreviations 187 (K. Guinach trans., 3d ed. 1983). This principle

was engrafted in English jurisprudence, having been recognized by

Sir William Blackstone, who acknowledged that “ ‘precedents and

rules must be followed, unless flatly absurd or unjust.’ ” J. Stein, The Hobgoblin Doctrine: Indentifying “Foolish” Consistency in the Law, 29 Tex. Tech. L. Rev. 1017, 1019 (1998) quoting 1  W. Blackstone, Commentaries *70. In American jurisprudence, stare decisis reflects a “ ‘policy judgment that “in most matters it is more important that the applicable rule of law be settled than that it be

settled right.” ’ ” State Oil Co. v. Khan, 522 U.S. 3, 20, 139 L. Ed. 2d 199, 212-13, 118 S. Ct. 275, 284 (1997), quoting Agostini v. Felton, 521 U.S. 203, 235, 138 L. Ed. 2d 391, 422, 117 S. Ct. 1997, 2016 (1997), quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 76 L. Ed. 815, 823, 52 S. Ct. 443, 447 (1932)

(Brandeis, J., dissenting, joined by Roberts and Cardozo, JJ.). As

the United States Supreme Court has observed, the judiciary

prefers this doctrine because it “promotes the evenhanded,

predictable, and consistent development of legal principles, fosters

reliance on judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609

(1991).

	This court, too, has voiced similar sentiments. Long ago in

Prall v. Burckhartt, the court observed that the rule of stare decisis

		“is founded largely on considerations of expediency and

sound principles of public policy, it being indispensable to

the due administration of justice, especially by a court of

last resort, that a question once deliberately examined and

decided should be considered as settled and closed to

further argument, and the courts are slow to interfere with

the principle announced by the decision and it may be

upheld even though they would decide otherwise were the

question a new one.” Prall v. Burckhartt, 299 Ill. 19, 41 (1921).

In light of the foregoing, this court has recognized that the

doctrine, while not inviolable, demands that it be overturned “only

on the showing of good cause.” Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 167 (1955). In my view, my colleagues have not shown any cause, let alone good cause, for

their actions today.

	Purporting to appreciate the considerations noted above, the

court states that “normally” it “would continue to adhere to ***

established precedent, even if certain members of this court

disagreed with it.” Slip op. at 18. Nevertheless, the court explains

that “[i]n this case, however, we deem it appropriate to depart

from stare decisis [because] *** [n]o reasonable observer of this court’s jurisprudence could argue that the law in this area has been

developing in a principled and intelligible fashion.” Slip op. at 18. 

I take this statement to refer to this court'’s decision, in People v. Burgess, 176 Ill. 2d at 289 )(1977), to charngenge from a bright line, automatic rule of reversal to a case-specific approach. I cannot

fahtthom how Justice Miller can join in an opinion that characterizes

this change as unprincipled and unintelligible because Justice Miller

himself authored Burgess. To the reader unfamiliar with our precedent in this area, it would

appear from today’s decision that our jurisprudence erratically

changed overnight from one of automatic reversal to a “case-by-

case approach.” Today’s opinion gives this inaccurate impression

because my colleagues fail to mention the critical role that People v. Burgess, 176 Ill. 2d 289 (1997), an opinion authored by a member of today’s majority, played in the development of our

psychotropic drug jurisprudence. The case law that the court today characterizes as “erratic and confused” is, in reality, neither. None

of the parties in this case appear to be confused; rather, both

defendant and the State have presented cogent arguments grounded in the law as it existed up until today. Likewise, the

various districts of our appellate court have rendered opinions in

this area that do not exhibit any degree of chaos with respect to

this issue. The only people who are “confused” by this case law are

those members of this court who do not like it and have resisted its

consistent application as the law of this state.

 	Although I acknowledge that stare decisis is applied less rigidly in constitutional cases (see Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 105 L. Ed. 2d 132, 148, 109 S. Ct. 2363, 2370 (1989)), the United States Supreme Court has noted

that the doctrine is so persuasive that, even in constitutional cases,

the Court has required a departure from precedent to be supported

by some “special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164, 172, 104 S. Ct. 2305, 2311 (1984). I must

point out that our prior case law in this area did not produce an

“unworkable”or problematic application of the law to defendants.

See Payne v. Tennessee, 501 U.S. 808, 842-43, 115 L. Ed. 2d 720, 746-47, 111 S. Ct. 2597, 2617-18 (1991) (Souter, J., concurring,

joined by Kennedy, J.) (recognizing that constitutional error in past

decisions alone is not reason to override stare decisis, but rather needs “special justification”). My review of the appellate court

decisions that have cited to Brandon and Burgess reveals that the lower courts have not had any difficulty in applying the case-

specific approach established in Burgess and utilized by this court in our decisions which postdate it.

	In order to understand how our case law has evolved since the

time Brandon was announced, a complete review of the history of this court’s psychotropic drug jurisprudence is necessary. This

review will illustrate that nothing has changed from the time that Brandon was modified by the court’s decision in Burgess, except for the fact that one member of the court that decided Brandon has retired. However, the circumstances that warrant changes in the

law do not include changes in personnel of the court. As Justice

Ryan once eloquently stated, “[i]f the law were to change with

each change in the makeup of the court, then the concept that ours

is a government of law and not of men would be nothing more than

a pious cliche.” People v. Lewis, 88 Ill. 2d 129, 167 (1981) (Ryan, J., concurring).

A

	One of the most basic tenets of our criminal justice system is

the recognition that the conviction of an incompetent defendant

violates that defendant’s fundamental right to due process. Pate v. Robinson, 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838 (1966); People v. Barkan, 45 Ill. 2d 261, 263 (1970); People v. Burson, 11 Ill. 2d 360, 368 (1957) (and cases cited therein). The constitutional right derives from the notion,

recognized at common law, that no person should be compelled to

stand trial while insane. People v. Gavrilovich, 265 Ill. 11 (1914). As this court has recognized, the need for inquiry into fitness at the

time of trial stems from concerns that an incompetent defendant

may be disabled from making a rational defense and may be

incapable “of co-operating with his counsel to the end that any

available defenses may be interposed.” Burson, 11 Ill. 2d at 369. Moreover, in the Code of Criminal Procedure of 1963, the Illinois

General Assembly has expressly prohibited the trial, adjudication,

sentence, or execution of person charged with a criminal offense

while insane. See 725 ILCS 5/104–10 et seq. (West 1996). The statute, however, does not, and was not intended to, abrogate the

common law rule. Burson, 11 Ill. 2d at 368.

	The Code of Criminal Procedure provides that the issue of a

defendant’s fitness to stand trial, to plead, or to be sentenced may

be raised by the defense, the State or the court at any appropriate

time before a plea is entered or before, during, or after trial. 725

ILCS 5/104–11(a) (West 1996). Prior to December 28, 1979, our

Criminal Code provided that, when a bona fide doubt of a defendant’s fitness has been raised, the court shall order a

determination of the issue before proceeding further. 725 ILCS

5/104–11(a) (West 1996). This court strictly construed these

statutory provisions to mean that whenever the court becomes

aware of facts that raise a bona fide doubt as to sanity, the court becomes duty-bound to “cause a sanity hearing to be held as

provided by law.” Burson, 11 Ill. 2d at 370.

	The failure to hold a fitness hearing once a bona fide doubt as to competence has been raised has long been deemed reversible

error. See Burson, 11 Ill. 2d at 370. The failure to make the requisite inquiry has been regarded as so fundamental to the right

to a fair criminal trial that it can be raised as an issue on appeal

despite a defendant’s failure to properly preserve it. This court’s

decision in Burson is illustrative in this respect. The court there reversed a criminal conviction because the trial court did not hold

the sanity hearing that was required by the Criminal Code. The

court did so even though the defendant

			“did not present or argue this point; and that the general

rule is that where a question is not raised or reserved in

the trial court, or where, though raised in the lower court,

it is not urged or argued on appeal, it will not be

considered and will be deemed to have been waived.

However, this is a rule of administration and not of

jurisdiction or power, and it will not operate to deprive an

accused of his constitutional rights of due process. ‘The

court may, as a matter of grace, in a case involving

deprivation of life or liberty, take notice of errors

appearing upon the record which deprived the accused of

substantial means of enjoying a fair and impartial trial,

although no exceptions were preserved or the question is

imperfectly presented.’ ” Burson, 11 Ill. 2d at 370-71, quoting 3 Am. Jur. Appeal & Error §248, at 33 (1937).5

In view of the foregoing, it is clear that this court has long

acknowledged that the deprivation of the sanity hearing required

by the statute was, in essence, a violation of constitutional due

process. See also Riggins v. Nevada, 504 U.S. 127, 140, 118 L. Ed. 2d 479, 492, 112 S. Ct. 1810, 1817-18 (1992) (Kennedy, J.,

concurring) (noting that a defendant’s waiver of the right to be

tried while competent would not withstand scrutiny under the Due

Process Clause and casts doubt on his or her exercise or waiver of

all subsequent rights and privileges through the whole course of the

trial). Moreover, this court has held that such a claim is cognizable on collateral review. See People v. Smith, 44 Ill. 2d 82, 85 (1969) (noting that successful petition must allege facts which

“demonstrate that such a hearing should have been had”).

	On December 28, 1979, the General Assembly amended the

Code of Criminal Procedure to address the issue of psychotropic

drugs. Such drugs, also known as antipsychotic drugs, were first

introduced in the 1950s and have since gained wide acceptance in

the psychiatric community as treatment for psychotic thought

disorders. See Riggins, 504 U.S. at 141, 118 L. Ed. 2d at 493, 112 S. Ct. at 1818 (Kennedy, J., concurring). Although these drugs

worked to restore normal thought processes by clearing

hallucinations and delusions, they also had unwanted side effects,

namely, slowed physical and mental functioning. These side effects

are severe enough to have caused one member of the United States

Supreme Court to acknowledge that ingestion of the drugs by a

criminal defendant can cause prejudice to that defendant by

rendering him or her unable or unwilling to assist counsel. See

Riggins, 504 U.S. at 141-42, 118 L. Ed. 2d at 493-94, 112 S. Ct. at 1818-19 (Kennedy, J., concurring). Our General Assembly

recognized the adverse effect these types of drugs could have on

the competency of an accused and amended the Criminal Code to

provide that

			“[a] defendant who is receiving psychotropic drugs or

other medications under medical direction is entitled to a

hearing on the issue of his fitness while under medication.”

725 ILCS 5/104–21(a) (West 1992).

The first reported Illinois decision that addressed this amendment

was People v. Tilson, 108 Ill. App. 3d 973 (1982). There, defendant Tilson contended that his conviction must be reversed

because the circuit court failed to hold the hearing provided for in

section 104–21(a) despite the fact that defendant was taking a

psychotropic drug under medical direction at the time of his trial.

The appellate court rejected Tilson’s challenge, noting that the

word “entitled” did not necessitate an obligation to hold the

hearing. Further, the court did not view the statute as being

indicative of an intent by the legislature to “remove the right of a

trial judge to exercise all discretion when he is possessed of

sufficient information to assure that the particular defendant is fit to stand trial and to be sentenced.” Tilson, 108 Ill. App. 3d at 978. For this reason, the court concluded that the circuit court did not

abuse its discretion in failing to hold the fitness hearing, sua sponte, and affirmed the conviction. The holding in Tilson was followed in several other appellate court decisions, culminating in the general

rule that a defendant’s ingestion of psychotropic medication was,

in effect, but one factor in determining whether a bona fide doubt of a defendant’s competence exists. See, e.g., People v. Lopez, 216 Ill. App. 3d 83, 87-88 (1991); People v. Balfour, 148 Ill. App. 3d 215, 226 (1986).

	Such was the state of Illinois’ decisional law on this issue

when defendant Tyrone Brandon directly appealed his first degree

murder conviction and death sentence to this court. People v. Brandon, 162 Ill. 2d 450 (1994). In that appeal, this court was presented, for the first time, with a challenge to the trial court’s

failure to hold a fitness hearing under section 104–21(a). In

contrast to the appellate court decisions on this subject, the court

concluded that section 104–21(a) “evinces a recognition by the

General Assembly that psychotropic medication is an important

signal that a defendant may not be competent to stand trial.”

Brandon, 162 Ill. 2d at 457. The court further concluded that Brandon’s trial attorney was ineffective for failing to point out to

the trial court that Brandon was entitled to the hearing under

section 104–21(a) and that the resulting prejudice was “manifest.”

Brandon, 162 Ill. 2d at 459. In so holding, four members of this court explicitly rejected the notion, first developed in Tilson, that the fitness hearing described in section 104–21(a) was a matter of

discretion with the trial court. Brandon, 162 Ill. 2d at 459, citing Pate v. Robinson, 383 U.S. 375, 386, 15 L. Ed. 2d 815, 822, 86 S. Ct. 836, 842 (1966). The court interpreted the word “entitled” to

mean just that–if facts are brought to the court’s attention that

indicate that defendant is taking psychotropic drugs under medical

direction, then the court does not have the discretion to not hold

the required hearing. Brandon, 162 Ill. 2d at 459.

	Justice Miller, joined by Justices Bilandic and Heiple, dissented

in Brandon. Although the dissenting justices acknowledged that it was “true that the defendant was entitled to a fitness hearing under

[section 104–21(a)],” they disputed whether defendant had established the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Brandon, 162 Ill. 2d at 461-63 (Miller, J., dissenting, joined by Bilandic, C.J.,

and Heiple, J.).6 According to the dissent, defendant Brandon could not establish prejudice for counsel’s failure to request a

hearing under section 104–21(a) because defendant could not show

that he was unfit. In other words, the dissent took the view that the

hearing, had it been ordered, would have resulted in a finding that

Brandon was fit for trial. Brandon, 162 Ill. 2d at 461-63 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).

	This court’s decision in Brandon marked a departure, in several critical respects, from the previous reported appellate court

decisions concerning the effect of a trial court’s failure to hold a

fitness hearing pursuant to section 104–21(a). First, all seven

members of the court embraced the notion that a defendant who is

taking psychotropic drugs under medical direction is entitled to a

hearing, for even the dissent conceded that proposition. Second, a

majority of the court deviated from the appellate court’s holding

that the decision to hold a fitness hearing pursuant to the statute

rests within the discretion of the trial court.

	Inexplicably, the court today holds that the word “entitle” does

not mean what most people of average intelligence believe it to

mean, namely, “to furnish with a right.” Indeed, the court goes to

great lengths to explain that the word “entitle” does not mean that

a court must make a “further inquiry” when certain facts are

brought to the court’s attention. See slip op. at 12. I know of no

rule of statutory construction which supports such a reading of this

statute. The language of section 104–21(a) is exactingly clear: a

defendant who is taking psychotropic drugs under medical

direction at the time of trial has the right to have an inquiry into the

issue of fitness. Under this statute, once a defendant is being

treated with psychotropic drugs, he or she need not raise a bona fide doubt as to fitness in order to receive a hearing. The hearing is automatic. The statute does not say that the trial judge has discretion to hold such a hearing when a defendant is taking

psychotropic drugs under medical direction. Nor does the statute

limit such hearings to only those who “timely” request them. In

fact, the Code of Criminal Procedure expressly allows for a post-

trial inquiry into fitness. See 725 ILCS 5/104--–11(a) (West 1996).

Thus, section 104–21(a) was not couched in terms which would

limit the circuit court’s ability to hold such a hearing, as today’s

opinion suggests. If psychotropic drugs were being administered,

a fitness hearing was to be held. The court in Brandon did not erroneously construe section 104–21(a).

	After Brandon was announced, this court next addressed section 104–21(a) in People v. Gevas, 166 Ill. 2d 461 (1995). Defendant Gevas appealed his conviction and death sentence to

this court, arguing, among other things, that the trial court erred by

not ordering a fitness hearing after learning that defendant was

taking psychotropic drugs under medical direction. Relying on the

decision in Brandon, the court concluded that the trial court’s failure to hold the hearing necessitated reversal of the convictions

and a new trial. The court held that, by enacting section 104–21(a),

the General Assembly had “equated the administering of

psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial.” Gevas, 166 Ill. 2d at 469. In so holding, the court noted that the legislature’s concern in this area was

substantial not only because such drugs signal that a defendant may

not be competent to stand trial, but because these types of drugs

can also “have severe side effects which can affect a defendant

during criminal proceedings.” Gevas, 166 Ill. 2d at 470. In support of this statement, the court cited Justice Kennedy’s concurrence in Riggins v. Nevada, 504 U.S. 127, 144, 118 L. Ed. 2d 479, 495, 112 S. Ct. 1810, 1820 (1992) in which he pointed out that “[t]he

side effects of antipsychotic drugs can hamper the attorney-client

relation *** rendering the defendant less able or willing to take

part in his defense [and] ‘can also lead to the defendant’s loss of

self-determination undermining the desire for self-preservation

which is necessary to engage the defendant in his own defense in

preparation for his trial.’ “”" Finally, the court concluded that

remanding the matter for a retrospective fitness hearing would be inherently difficult. Therefore, the only proper remedy was a new

trial. Gevas, 166 Ill. 2d at 471.

	Once again, Justice Miller, joined by Justices Bilandic and

Heiple, dissented, this time on the basis that defense counsel’s

failure to inform the trial judge sooner in the proceedings of

defendant’s ingestion of psychotropic drugs was a matter of trial

strategy. According to the dissent, the trial judge in the case “was

warranted in concluding that the defendant was fit and was justified

in refusing counsel’s untimely request for a hearing.” Gevas, 166 Ill. 2d at 473 (Miller, J., dissenting, joined by Bilandic, C.J., and

Heiple, J.). Moreover, the dissenting justices stated the following:

		“If, as the majority insists, section 104–21(a) is to be

applied in this case, then the proper course would be to

remand for an evidentiary hearing to determine whether

the defendant was still receiving drugs at the time of the

plea hearing.” Gevas, 166 Ill. 2d at 474 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).

It was for these reasons that the dissenting justices believed that

the court’s decision to grant defendant Gevas a new trial was

erroneous.

	This court was next presented with the psychotropic drug

issue in Kinkead I, 168 Ill. 2d 394, another capital case. Defendant Kinkead claimed that he was not afforded a fitness hearing despite

the fact that he was taking psychotropic drugs at the time of the

proceedings against him. The court began its analysis by

reaffirming the principles established in both Brandon and Gevas. Moreover, the court again rejected any notion that the ingestion of

psychotropic medication was, in effect, but one factor in the trial

court’s bona fide doubt analysis. Kinkead I, 168 Ill. 2d at 409. The court specifically noted that the appellate court decisions relied

upon by the State were all decided prior to Brandon. The court further rejected the State’s contention that the trial court’s

“observations of defendant’s demeanor during the proceedings

[were] dispositive of the fitness issue in the case at bar.” Kinkead I, 168 Ill. 2d at 409-10. In reaching this conclusion, the court specifically stated:

		“We believe that the legislature intended, through the plain

language of the statute, to remove the determination of a defendant’s fitness from the subjectivity of personal

observation and place the question in the formal context of

a fitness hearing. Psychotropic medications are potent

drugs and their effect on the mind and behavior of an

accused may not be easily determined or fully understood,

particularly by nonmedical personnel. A fitness hearing

provides the vehicle by which the court may ascertain

whether the drugs are influencing the defendant’s

subjective decision regarding the pursuit of available

defenses.” Kinkead I, 168 Ill. 2d at 410.

Nevertheless, the court noted that Kinkead’s situation was slightly

different from that of the defendants in Brandon and Gevas because the record on appeal was inadequate–the court could not

“determine whether the administration of the Thorazine was

proximate enough in time to defendant’s guilty plea and sentencing

to trigger the right to a full fitness hearing pursuant to section

104–21(a).” Kinkead I, 168 Ill. 2d at 414. The matter was therefore remanded with directions that the circuit court conduct

an inquiry into the factual circumstances surrounding defendant’s

asserted use of psychotropic medication. Kinkead I, 168 Ill. 2d at 417.

	Again, Justice Miller, joined by Justices Bilandic and Heiple,

dissented. Contrary to the view expressed in their Gevas dissent, the dissenting justices now took issue with remanding the matter

for the factual inquiry. Compare Kinkead I, 168 Ill. 2d at 418 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.), with

Gevas, 166 Ill. 2d at 474 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). Moreover, the dissenting justices disagreed

with the conclusion that the legislature, through section 104–21(a),

essentially equated the use of psychotropic drugs with the presence

of a bona fide doubt concerning fitness. According to the dissent, a defendant may be entitled to a fitness hearing under the

provision, but such a defendant must invoke the statute in “a timely

manner.” Kinkead I, 168 Ill. 2d at 419 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).

	The court next addressed the same issue in yet another capital

case, People v. Birdsall, 172 Ill. 2d 464 (1996). Defendant Birdsall contended, inter alia, that he was denied due process of law and effective assistance of counsel because he was not afforded the

competency hearing to which defendants are entitled by section

104–21(a) if they are taking psychotropic medication under

medical direction at or near the time of trial or sentencing. The

court noted that under long-established principles of due process,

an accused may not be prosecuted or validly convicted if he or she

is unfit to stand trial. Birdsall, 172 Ill. 2d at 474-75. Moreover, to secure this due process protection, Illinois statutory and case law

require a trial court to hold a competency hearing if there is a bona fide doubt concerning the defendant’s mental fitness to understand the nature and purpose of the proceedings and to assist in his or

her defense. Citing the Gevas decision, the court noted that the legislature indicated through the plain language of section

104–21(a) that it had “equated the administering of psychotropic

medication to a defendant with a bona fide doubt as to fitness to stand trial.” Birdsall, 172 Ill. 2d at 475.7 After a thorough review of Illinois law, the court concluded that Birdsall was entitled to

relief based on the denial of his right to a fitness hearing, and a new

trial was ordered. Birdsall, 172 Ill. 2d at 475-77. Moreover, the court rejected the State’s explicit request that the court “repudiate”

its holdings in Brandon, Gevas, and Kinkead I. In place of the automatic reversal rule enunciated in Brandon and Gevas, the State urged this court to adopt a totality of the circumstances test in

which the court could assess whether the psychotropic drugs had

impaired defendant’s fitness to understand and assist in his defense.

The court declined the State’s request, noting that the State did not

point to anything in the record on appeal that contained any evidence of a medical nature respecting the influence the drugs may

have had on Birdsall. Birdsall, 172 Ill. 2d at 477-79.

	Justice Miller, again with Justices Bilandic and Heiple joining,

dissented. Once more, the dissenting justices charged that the court

was mistakenly equating the statutory entitlement to a fitness

hearing found in section 104–21(a) with a bona fide doubt of the defendant’s fitness. The dissent also believed that the court had

confused “defendant’s failure to assert the procedures it believes

are designed to secure due process with a denial of due process

itself.” Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). According to the dissent, section

104–21(a) “grants to a defendant an entitlement to a fitness hearing

in cases in which the constitutional right is not at all implicated.”

Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). The dissenting justices also

maintained that “[r]ather than being a question of due process, the

issue is properly analyzed in terms of ineffective assistance of

counsel.” Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). In order to establish prejudice, a

defendant must show not only that a fitness hearing would have

been conducted if requested, but defendant must also demonstrate

that the outcome of the hearing would have been favorable to him.

	Up until Birdsall, all of this court’s decisions which had addressed the psychotropic drug issue had done so in the context

of a direct appeal from trial. In People v. Nitz, 173 Ill. 2d 151 (1996), the court faced the same question in the context of

collateral review. Defendant Nitz sought relief under the Post-

Conviction Hearing Act, asserting that his murder convictions and

death sentence were obtained in violation of his federal and state

constitutional rights. Nitz contended that he was entitled to a new

trial because the State withheld information that it was

administering psychotropic medication to him throughout the

course of this trial and sentencing. According to Nitz, the State’s

failure to disclose the information deprived him of his

constitutional due process right to a fitness or competency hearing.

The court began its analysis of defendant’s contention by

examining the nature and scope of the due process right in the

context of an accused’s competency to stand trial, noting that the failure to observe procedures adequate to protect a defendant’s

right not to be tried while unfit deprived the defendant of due

process. Nitz, 173 Ill. 2d at 156. The court then cited several cases, decided before the enactment of section 104–21(a), that held that

if facts existed at the time of defendant’s trial which, if presented

to the trial court, would have raised a bona fide doubt as to defendant’s sanity, the accused would have had a right to have a

hearing and that such a claim could be heard on collateral review.

See Nitz, 173 Ill. 2d at 157 (citing People v. Smith, 44 Ill. 2d 82 (1969), People v. McLain, 37 Ill. 2d 173 (1967), and People v. Harris, 113 Ill. App. 3d 663 (1983)). Recognizing the due process implications of Nitz’s claim, the court went on to evaluate it in

light of Brandon and its progeny. Although the court noted that the procedures contained in the Code of Criminal Procedure regarding

fitness were purely statutory, the court held that the right to inquiry

established in the Code, be it through bona fide doubt or be it through the ingestion of psychotropic drugs, flows from the due

process guarantee that an accused who is unfit will not be tried.

Nitz, 173 Ill. 2d at 160-61. Moreover, the court rejected the State’s contention that Nitz’s demeanor at trial was dispositive of the

issue, noting that the court had previously rejected similar

arguments in Brandon, Gevas, and Kinkead I. The court also rejected the State’s invitation to overturn the “automatic reversal”

rule enunciated in Brandon and the cases which followed it. Nitz, 173 Ill. 2d at 163. Noting that an “automatic reversal” has always

been the appropriate remedy where a requisite statutory fitness

hearing was not provided, the court concluded that Nitz was

entitled to a new trial. Nitz, 173 Ill. 2d at 164. In other words, the court in Nitz held that the failure to hold the required hearing under section 104–21(a) necessitated the same type of relief as did the

failure to hold a hearing under section 104–11(a).

	Justice Miller, joined by Justices Bilandic and Heiple, again

dissented. The dissenting justices continued to adhere to the notion

that the right to the hearing established in section 104–21(a) could

not be equated with a bona fide doubt of fitness. In addition, the dissent believed that the right provided in section 104–21(a) was

statutory as opposed to constitutional and, therefore, was not

cognizable under the Post-Conviction Hearing Act. Nitz, 173 Ill. 2d at 165 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple,

J.).

	Nitz and the cases decided before it firmly established that due process considerations were at play in those cases in which a

defendant was entitled to, but did not receive, a hearing under

section 104–21(a) at the time of trial or sentencing. Under the

guise of “correcting” “erroneous” precedent, the court today

deprecates the constitutional right to be fit when tried. For example, the court insists that the failure to hold a section

104–21(a) hearing is merely a violation of a statute, stating that

“[s]tatutes do not confer constitutional rights, and the allegation of

a deprivation of a statutory right is not a proper claim under the

Act.” Slip op. at 10. The court ignores the reality, just as the

dissenters did in Nitz, that the statutory provisions concerning fitness contained in our Code of Criminal Procedure implicate the

fundamental constitutional right to be competent while tried. The

court seems incapable of understanding that these psychotropic

drug cases present, at root, the question of whether defendants

were unfit when tried. If the answer to this question is yes, the

conviction cannot stand because the “conviction of an accused

person while he is legally incompetent violates due process.” Pate, 383 U.S. at 378, 15 L. Ed. 2d at 318, 86 S. Ct. at 838.  The

purpose of the post-conviction remedy is to provide a mechanism

by which convicted persons could raise “the question of whether

they were denied due process of law” at their original trials. People v. Dale, 406 Ill. 238, 243 (1950). Our Post-Conviction Hearing Act was specifically designed to vindicate those constitutional

rights that were not and could not have been raised at the time of

trial.  In the psychotropic drug cases, the defendants are presenting

evidence, which if known at the time of trial, would have

necessitated that an inquiry be made into the issue of fitness. No

inquiry was made in these cases; therefore, a possibility exists that

the drugs that were being administered may have rendered some

unfit. As noted, an accused who is unfit to be tried and is

nevertheless convicted has been denied due process. That four

members of this court fail to see the due process implications in

such cases is incredulous.

  	Moreover, the court today mischaracterizes the facts in Nitz. It must be remembered that, in that case, defendant Nitz alleged in his post-conviction petition that the State withheld from both

defendant and his attorney the psychotropic nature of the drugs

that were administered to defendant Nitz at the time of the trial.

Clearly, had those facts been known to either defense counsel or

the trial judge, the court would have been duty-bound to hold the

hearing mandated by the statute. Therefore, the post-conviction act

provided the only means by which defendant could vindicate his

constitutional right to inquiry surrounding his competence. See

People v. Smith, 44 Ill. 2d 82 (1969) (acknowledging the cognizability on post-conviction of a claim regarding the failure of

a court to hold a bona fide doubt hearing); J. Decker, “Last Chance” State Judicial Review in Criminal Cases–Illinios’

Collateral Attack Remedies: A Call For Principled Jurisprudence, 38 DePaul L. Rev. 201, 271 (1988) (noting that competency to

stand trial or to enter a plea is of constitutional magnitude and is an

issue cognizable under the Illinois post-conviction hearing act). 

	After Nitz was announced, the court next addressed section 104–21(a) in People v. Britz, 174 Ill. 2d 163 (1996), which, like Nitz, was a post-conviction challenge to a death sentence. Defendant Britz argued, inter alia, that he was on “medication” pursuant to medical orders during his trial proceedings. Britz

maintained that, under section 104–21(a), the trial court should

have held a fitness hearing. The court began its analysis by citing Brandon, Gevas, Kinkead I, and Nitz for the proposition that when psychotropic drugs are prescribed to an accused pursuant to

medical direction and no fitness hearing is held, either a new trial

is necessary or a remand is required in order to establish if the

drugs were administered at the time of the proceedings so as to

trigger the statute’s application. Britz, 174 Ill. 2d at 195-96. The court determined, however, that Britz did not come within the

purview of section 104–21(a) because the medications that he was

given were not psychotropic in nature and that the legislature

intended to address only psychotropic drugs or their equivalent in

the statute. Britz, 174 Ill. 2d at 196-98. The court reached this conclusion because the legislature was concerned with protecting

against medications “capable of interfering with [the ability to understand the nature and purpose of the proceedings against him

or assist in his defense].” Britz, 174 Ill. 2d at 197. For these reasons, the court concluded that Britz had not been entitled to a

fitness hearing on the basis of the medications he had ingested.

Britz, 174 Ill. 2d at 198. The court, therefore, affirmed the circuit court’s dismissal of Britz’s post-conviction petition.

	Given their previous dissent in Nitz, one would have expected Justices Miller, Bilandic, and Heiple to have concurred only in the

judgment of the court, explaining that they did so only because

they believed that Britz’s section 104--–021(a) claim was not

cognizable under the Post-Conviction Hearing Act due its statutory

nature. See Nitz, 173 Ill. 2d at 165 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). Moreover, none of these justices

registered any disagreement with the premise of the court’s

opinion, i.e., that had the drugs Britz ingested been psychotropic (or the equivalent) then a fitness hearing would have been required

pursuant to Brandon and it progeny. Notwithstanding the views expressed in their previous dissents, each of the three justices

joined fully in the court’s decision.

	 Section 104–21(a) next came before the court in People v. Kidd, 175 Ill. 2d 1 (1996), a direct capital appeal. Defendant Kidd contended that he was entitled to a fitness hearing under Brandon because he was taking the drugs Dilantin, Tegretol, and Elavil at

the time of the proceedings against him. Despite his consistent

dissenting view on the psychotropic drug issue, Justice Miller

authored the court’s decision. The court noted that the record on

appeal established that Kidd was receiving only Dilantin at the time

relevant to the proceedings. Kidd, 175 Ill. 2d at 17. Citing to Britz, the court concluded that Dilantin was not a psychotropic drug or

its equivalent; therefore, Kidd “was not entitled to a fitness hearing

under section 104–21(a) [and] defense counsel could not have been

ineffective for failing to seek one pursuant to that provision.” Kidd, 175 Ill. 2d at 19.

	Neither Justice Bilandic nor Justice Heiple filed a separate

opinion in Kidd. As in Britz, the three original Brandon dissenters joined fully in the court’s opinion, without specifically registering

their continued disagreement with the court’s interpretation of

section 104–21(a). Surprisingly, these three justices joined in an analysis concerning whether the “other medications” referred to in

section 104–21(a) were the equivalent of psychotropic drugs–given

their previous dissents, these three justices could have taken the

position that, even if Kidd had been taking psychotropic drugs as he

alleged on appeal, he would not be entitled to a new trial for the

reasons previously cited in their dissenting opinions in Brandon, Gevas, Kinkead I, and Birdsall.

	Such was the state of this court’s psychotropic drug

jurisprudence when Raymond Burgess appealed his conviction and

death sentence directly to this court. People v. Burgess, 176 Ill. 2d 289 (1997). I note that today’s decision is remarkable in failing to

discuss or even cite the Burgess decision. Defendant Burgess argued that he was entitled to a fitness hearing under section

104–21(a) because he was taking psychotropic medication at the

time of his trial. Following the submission of his initial brief,

however, defendant filed a motion in this court requesting a limited

hearing pursuant to our decision in Kinkead I. The court granted the motion without recorded dissent, remanding the cause for a

hearing for the “ ‘limited purpose of determining whether defendant

ingested psychotropic medication at or near the time of his trial and

sentencing.’ ”8 Burgess, 176 Ill. 2d at 299. After the conclusion of the hearing, the parties submitted briefs to this court on the issues

raised by the remand proceedings. Defendant contended that he was

entitled to a new trial under Brandon and its progeny because the evidence adduced at the hearing established that he was receiving

psychotropic drugs at the time of his trial, but had not received the

requisite fitness hearing. In response, the State argued that a new

trial was not necessary because the medical evidence adduced at the limited hearing established that defendant was not impaired by the

ingestion of the drugs.

	Justice Miller, writing for the court, began the analysis of the

issue by stating the following:

			“The State acknowledges that under our decisions in

People v. Brandon, 162 Ill. 2d 450 (1994); People v. Gevas, 166 Ill. 2d 461 (1995), People v. Birdsall, 172 Ill. 2d 464 (1996), and People v. Nitz, 173 Ill. 2d 151 (1996), this court could simply grant the present defendant a new

trial, without regard to his actual condition at the time of

the proceedings below, given his ingestion of psychotropic

drugs during the trial and sentencing hearing. The State

argues, however, that we should not invoke the practice of

automatic reversal in this case, in light of the evidence

revealed at the special supplemental hearing.

			We agree with the State that a rule of automatic reversal

is not always appropriate. As this case demonstrates, there

will be some circumstances in which it can be said that the

use of psychotropic medication did not affect the

defendant’s mental functioning in such a way that relief

would be appropriate. We are aware that we have

previously declined to make use of retrospective fitness

hearings, noting the difficulty in determining, long after the

conclusion of the underlying proceedings, the degree of

mental functioning enjoyed then by the defendant.  See

People v. Birdsall, 172 Ill. 2d 464, 476 (1996) (citing Brandon and Gevas). Nonetheless, we believe that, at least in the present case, there are sufficient reasons to depart

from our previous practice of automatic reversal and to

make a case-specific inquiry into the psychotropic drugs

administered to this particular defendant.”Burgess, 176 Ill. 2d at 303.

The court went on to conclude that defendant’s own expert witness

did not believe that the psychotropic drugs administered to Burgess

could have had any effect on Burgess. According to the court, the

testimony of defendant’s expert “demonstrates [that] we should not

automatically assume that every psychotropic drug will inevitably

render the person taking it unfit for purposes of trial or sentencing, and we therefore conclude that retrospective hearings are

sometimes proper.” Burgess, 176 Ill. 2d at 304. The court affirmed Burgess’ conviction and sentence.

	Justice Harrison dissented, and I joined in his dissent. The

dissenting justices questioned why Burgess should be treated

differently from the defendants in the other cases which had

preceded his. Burgess, 176 Ill. 2d at 325 (Harrison, J., dissenting, joined by Freeman, J.). According to the dissent, the court in

Burgess’ case was making the same after-the-fact assessment of

fitness that had been repeatedly and consistently rejected in Gevas and Birdsall. Burgess, 176 Ill. 2d at 325 (Harrison, J., dissenting, joined by Freeman, J.).

	The decision in Burgess is notable because of the position taken in it by the three original Brandon dissenters, three justices who today comprise 75% of the majority. Recall that none of these

three justices believed that due process concerns were implicated by

the failure to hold the hearing required under section 104–21(a).

Contrary to their previously expressed views, they held, in Burgess, that there could be “some circumstances in which it can be said that

the use of psychotropic medication did not affect the defendant’s

mental functioning in such a way that relief would be appropriate.”

Burgess, 176 Ill. 2d at 303. The converse of such a statement is, of course, that there could be some circumstances in which it cannot be said that the use of psychotropic medication did not affect a

defendant’s mental functioning. If, as the three dissenters had maintained prior to Burgess, the failure to hold the hearing required under section 104–21(a) did not implicate due process, why then

did Justice Miller construct the Burgess analysis and why did Justices Bilandic and Heiple concur in it? Burgess did not explicitly overrule Brandon or any of the cases that had adhered to the rule of automatic reversal enunciated in it. Rather, Burgess merely modified the type of relief that would be afforded to defendants

who had failed to receive the requisite fitness hearing at the time of

the proceedings against them. Brandon and the cases which followed it had held that due process required that a new trial be

ordered in all such cases because of the inherent unreliability of

retrospective fitness hearings. Burgess changed the rule in that if it could be later established that the medications did not impair defendant’s ability to participate and assist in this defense, due

process did not require that a new trial be ordered. If the original

Brandon/Nitz dissenters were correct in their legal analyses, as the court today insists that they were, then they should not have joined

in a decision which still left the basic premise of Brandon intact–that some inquiry must be undertaken in order to evaluate

the effect, if any, the psychotropic drugs had on a defendant’s

fitness to be tried and sentenced.9 Given their views in Brandon, Gevas, Birdsall, Kinkead I, and Nitz, the three dissenters could have chosen to continue to dissent in Burgess. One would certainly not expect Justice Miller, the author of all of these dissents, to

author an opinion which was grounded in principles first recognized

in Brandon. The Brandon/Nitz dissenters cannot have it both ways.  	After the Burgess opinion was announced, the court next addressed section 104–21(a) in People v. Neal, 179 Ill. 2d 541 (1997), a capital post-conviction proceeding. Defendant Neal filed

a post-conviction petition, his third, in which he alleged that he

should have received a fitness hearing pursuant to section

104–21(a) because of his ingestion of psychotropic drugs. The

State filed a motion in the circuit court seeking dismissal of the

petition, but the circuit court denied the motion. An evidentiary

hearing was held at the conclusion of which the circuit court denied

post-conviction relief. This court affirmed the denial of relief

without dissent. The court held that

			“retrospective fitness determinations will normally be

inadequate to protect a defendant’s due process rights when more than a year has passed since the original trial

and sentencing. In exceptional cases, however,

circumstances may be such that the issue of defendant’s

fitness or lack of fitness at the time of trial may be fairly

and accurately determined long after the fact. In such

cases, Burgess will apply, and a defendant will not automatically be entitled to have his original conviction and

sentence automatically set aside for a new trial.” Neal, 179 Ill. 2d at 554.

The court considered Neal’s case to be such an “exceptional” case

based on the evidence adduced at the post-conviction evidentiary

hearing. See Neal, 179 Ill. 2d at 554 (finding situation at bar “directly analogous to that present in Burgess”). The court further held that although the court in Burgess was able to assess the evidence “closer in time to the original proceeding,” that fact, in

and of itself, was “of no consequence.” Neal, 179 Ill. 2d at 554. The court explained why this was so:

		“If the chemical properties of medication are such that their

effects could accurately be assessed in light of a

defendant’s known medical history, as was the case here,

it would not matter whether the evaluation followed the

original trial and sentencing by 15 days or 15 years. The

result would be the same.” Neal, 179 Ill. 2d at 554.

Therefore, Neal stands for the proposition that in some, but not all, cases, circumstances may be such that the issue of defendant’s

fitness or lack of fitness may be fairly and accurately determined

long after the fact. Neal, 179 Ill. 2d at 554. In such cases, a new trial would not be the appropriate remedy for the failure to hold a

fitness hearing under section 104–21(a).

	The decision in Neal was issued without any dissent. None of the three original Brandon dissenters filed separate opinions in the case. This was somewhat surprising because all three previously had

noted that post-conviction relief could not be obtained on the basis

of the statutory right. See Nitz, 173 Ill. 2d at 165-66 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). Despite their

votes in Neal, Justices Miller, Bilandic, and Heiple appear to have now returned to their pre-Neal view that such a claim is not cognizable in post-conviction cases. Moreover, not one member of the court questioned why res judicata did not bar defendant’s petition since Neal’s petition was his third such pleading under the Act. The failure of Justices Miller, Bilandic, and Heiple in Neal to note any of these procedural points seemed to indicate that they had

acquiesced in the Brandon holding as it was modified by Burgess. Moreover, the two dissenting justices in Burgess also fully joined in Neal. Thus, it appeared that all seven members of the court had reached a compromise and had settled upon a rule that each could

apply. Such an assumption would only be strengthened when the

court issued its next opinion in this area, People v. Cortes, 181 Ill. 2d 249 (1998), a direct capital appeal.

	Defendant Cortes argued that he was entitled to a new trial

because of his ingestion of psychotropic drugs at the time of the

proceedings against him. Cortes’ trial had been conducted between

October 24 and November 4, 1994, and the sentencing hearing was

held from November 9 to November 10, 1994. During the post-trial

motions, defense counsel presented the circuit court with a copy of

this court’s decision in Brandon and the appellate court’s decision in People v. Guttierez, 271 Ill. App. 3d 301 (1995), in which the appellate court ordered a new trial for defendant based upon this

court’s holding in Brandon. Defense counsel also alerted the circuit court to the fact that several doctors had declared Cortes fit to

stand trial under medication. Because it was unclear whether the

medication was psychotropic in nature, the trial court ordered a

behavioral clinical examination of Cortes and instructed defense

counsel to determine the particulars of Cortes’ use of medication.

Eventually, the trial court held a fitness hearing on the question of

Cortes’ competence. Defense counsel objected, noting that a

retrospective fitness hearing was inappropriate and that the only

proper remedy was to order a new trial. After receiving evidence at

the hearing, the trial court denied Cortes’ motion for a new trial.

	In a decision issued without dissent, this court affirmed the trial

court’s decision. We began our analysis by noting the development

of our case law from the time that Brandon was decided. We further noted that the General Assembly had amended section

104–21(a) subsequent to Brandon, but that the new amendment could not be applied to Cortes’ case retroactively. Cortes, 181 Ill. 2d at 275 n.2. The court found that Burgess controlled Cortes’ case because Cortes’ fitness “could be fairly and accurately determined

after the fact because, as in Burgess, the evidence showed that the medication ingested by [Cortes] did not have any affect on his

fitness.” Cortes, 181 Ill. 2d at 276 (citing Burgess, 176 Ill. 2d at 303-04, and Neal, 179 Ill. 2d at 554).

	Thus, Burgess, Neal, and Cortes unequivocally illustrate that the seven members of this court had reached common ground over

the question of how to handle the psychotropic drug issue. The

original dissenters had fully joined in decisions that recognized the

right to raise the issue, whether it be on direct or collateral review,

in cases where a defendant had been deprived of the section

104–21(a) fitness hearing at the time of trial. In addition, the two

dissenting justices in Burgess had joined in the post-Burgess decisions which held that in exceptional cases retrospective fitness

determinations could resolve the psychotropic issue.

	Our most recent published opinion that addressed section

104–21(a) was Kinkead II, 182 Ill. 2d 316, the appeal from the remand hearing ordered in Kinkead I. Applying the case-specific approach of Burgess, Neal, and Cortes, the court determined that

			“the remand hearing conducted in the case at bar gives

rise to a significantly greater concern than existed in

Burgess, Neal or Cortes, that the defendant’s ingestion of antipsychotic drugs during the plea and sentencing

proceedings influenced his decision-making abilities.

Therefore, our conclusion that the defendants in those

cases were not entitled to a new trial does not compel a

similar conclusion [here]. Indeed, in this case much of the

evidence appears to favor defendant’s argument that the

Thorazine he took may have influenced his ability to make

a reasoned decision to plead guilty to greater charges and

seek a sentence of death.” Kinkead II, 182 Ill. 2d at 347.

 The court therefore concluded that Kinkead should receive a new

trial.

	The three original Brandon dissenters disagreed, this time with Justice Heiple writing for them. The dissenting justices took issue

with two specific aspects of the court’s decision. The first centered

on the retroactive effect of the amended section 104–21(a). Despite

the fact that in Cortes all three justices had joined in an opinion which explicitly rejected the notion that the new amendment was

retroactive (see Cortes, 181 Ill. 2d at 275 n.2), the dissent now believed that retroactivity was in order. Kinkead II, 182 Ill. 2d at 351 (Heiple J., dissenting, joined by Miller and Bilandic, JJ.), citing First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 290 (1996) (applying vested rights doctrine). Notwithstanding the alleged

retroactivity of the amended section 104–21(a), the three dissenters

disagreed with the court’s view of the evidence adduced at the

hearing on remand. It is significant to note that the dissenters did

not disavow Burgess or the views expressed in that decision. In fact, their reasoning was based on the recognition in Burgess that evidence adduced at a later proceeding could establish definitively

that the psychotropic drugs did not impair a defendant’s ability to

participate and assist in his defense. According to the dissent, the

evidence adduced at the hearing “fully comports with the trial

court’s conclusion that defendant’s use of Thorazine *** was not

medically significant with regard to his fitness to stand trial.”

Kinkead II, 182 Ill. 2d at 358 (Heiple, J., dissenting, joined by Miller and Bilandic, JJ.). For these reasons, the dissenting justices

did not believe that Kinkead was entitled to a new trial.

	The foregoing review of this court’s psychotropic drug case

law affirmatively belies today’s assertion that our case law in this

area has developed in an unprincipled and unintelligible fashion. See

slip op. at 18. To the contrary, my review demonstrates that the

three original Brandon/Nitz dissenters joined in decisions which recognized the right to make an inquiry, be it an after-the-fact

inquiry. Nevertheless, these three justices now believe that applying

our current case law to this defendant is unnecessary because that

case law is “erroneous.” As I stated at the outset of this dissent,

neither of the parties have asked this court to revisit the arguments

made in Brandon and Nitz. The only reason those arguments have been resurrected in this case is because the three dissenters now

have a fourth vote to achieve that which they could not achieve on

the day Gevas, Kinkead I and II, Birdsall, Nitz, Burgess, Neal, and Cortes were issued–to overrule Brandon. Today’s decision merely reiterates, this time with the approval of four justices as opposed to

three, the same arguments made by Justice Miller in his initial

dissents. While my colleagues are quick to point out the alleged deficiencies in the legal analyses contained in Brandon, Gevas, Kinkead I and II, and Nitz, they are utterly silent as to the fact that these decisions were modified by Burgess and that for the past two years, this court, up until today, had been content to follow the

approach that Justice Miller himself had constructed in Burgess.10 What the three dissenters have failed to explain today is why

defendant Mitchell in this case cannot have the opportunity to

establish that the antipsychotic drugs he ingested may have affected

him in a way that did not affect defendant Burgess. If, as Justice

Miller clearly stated in Burgess, there might be some circumstances that would not necessitate a new trial, then why does he refuse to

apply his own analysis to the case at bar? Since the time that

Brandon was issued, Justices Miller, Bilandic, and Heiple have concurred in subsequent decisions which hold that some sort of

after-the-fact inquiry is necessary in cases such as this. Thus, I

believe that the opportunity to overrule Brandon and its progeny has long passed. In several of our earlier decisions on this issue, the

State specifically asked the court to repudiate the Brandon rule, and we explicitly declined to do so. In the interim, we have issued

opinions approving of a defendant’s right to inquire if the

psychotropic drugs affected fitness. Although the court has changed

its view as to how that inquiry is to be made, the court has

consistently recognized a defendant’s ability to raise the issue and

the court has consistently, in every case since Brandon was decided, resolved the issue on its merits. Our previous opinions

represented this court’s best effort to deal with the critical questions

raised by the failure to have held the hearing required by section

104–21(a). I must remind my colleagues those opinions represent

the law and as such are relied upon by the judiciary, prosecutors, criminal defendants, as well as the citizens of this state.11 For the three original Brandon dissenters to shift gears now, after having participated in and authored opinions in other cases in which

psychotropic drugs were in issue, is, with all due respect,

inconsistent and without principle. 

	As I noted earlier, the court contends that stare decisis need not be applied in this case because “[n]o reasonable observer of this

court’s jurisprudence could argue that the law in this area has been

developing in a principled and intelligible fashion.” Slip op. at 18.

The court points out that, although in 1995 this court rejected any

notion of retrospective fitness hearings as being reliable, two years

later in 1997, “we saw no problem with a retrospective fitness

hearing conducted 15 years after defendant’s trial and sentencing.”

Slip op. at 18, citing Neal, 179 Ill. 2d at 553-56. The court then states that “[i]n 1998, we held that the automatic reversal rule of

Brandon had been replaced by the ‘case-by-case’ approach and that a defendant could no longer prevail on a request for a new trial

simply by showing that he had been taking psychotropic

medications at the relevant time.” Slip op. at 18, citing Kinkead II, 182 Ill. 2d at 340. I have already demonstrated how the court today

has manipulated our jurisprudence in this area by conveniently

omitting the role Burgess played in this history and the hand that the original Brandon/Nitz dissenters had in creating Burgess. While Justice Rathje, who was not a member of this court at the times those cases were decided, is entitled to the view that such a

development is unprincipled and unintelligible, I find it beyond

belief that Justices Miller, Bilandic, and Heiple could share in that

view. After all, it was Justice Miller, writing for the court in

Burgess, who opened the door for the retrospective fitness hearings. See Burgess, 176 Ill. 2d at 303. Had Justices Miller, Bilandic, and Heiple been concerned with the propriety of such a

volte face, they should not have been willing to adopt Burgess and should not have added their imprimatur to the decisions in Neal and Cortes–two cases which followed the approach endorsed by them in Burgess. Moreover, to cite Kinkead II as an example of unprincipled jurisprudence is to mischaracterize the decision–the

court in Kinkead II merely followed the precedent of the court as established in Burgess and applied in Neal and Cortes. Under the case law set forth in those decisions, the court concluded that

defendant Kinkead was entitled to a new trial.

	In addition, the court’s decision in Burgess to change from a bright line rule announced in Brandon to a case-specific approach, though criticized at the time by two members of the court, is hardly

the type of change in circumstance that warrants the overturn of

stare decisis. As noted in Kinkead II, the case-by-case approach comports with due process and ensures that those defendants who

were ingesting psychotropic drugs were not impaired by them to

the extent that their ability to participate in the defense was

hampered. Under today’s decision, such similarly situated

defendants now have no recourse whatsoever. I do not believe that

the doctrine of stare decisis should be overturned when to do so produces such an unjust result. I must point out that, when this

issue arises in the context of a capital case, as all of our cases have

been, the need to ensure, as the statute then required, that

antipsychotic drugs did not impair or hamper the defendant’s ability

to assist in his or her defense becomes all of the more important. This

last point should not be overlooked for it leads to another

disturbing aspect of today’s decision. All of our psychotropic drug

cases have been capital appeals, either direct appeals from trial or

appeals from post-conviction proceedings. Although this court is a

court of permissive review, capital appeals come to us directly. See

Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a), 651(a). As a result, this court is frequently presented with the same

arguments in case after case, in term after term. Once a legal

question has been settled and closed to further argument, I, for one,

cannot emphasize enough the need for its consistent application in

similar cases. The law of this court cannot be seen by the bar and

the public to be one that is constantly “in flux,” changing from

opinion to opinion, particularly in capital cases. Both the State and

the appellate defense bar should be entitled to view a decision of

this court on a given issue as static once that issue has been settled.

Both this case and the Palmer case (see supra at 64 n.11) all too sadly demonstrate that it is the arbitrary hand of fate, as opposed to

the established rule of law, that will mean the difference between

life and death. In my view, the court today fails to recognize the

important need for following stare decisis in capital cases. 

	B

	In light of the above, I believe that the circuit court in this case

erred by dismissing defendant’s psychotropic drug claim without an

evidentiary hearing. Defendant’s petition alleged that he was taking

two psychotropic medications at the time of his trial. Had defense

counsel requested a fitness hearing at that time, the circuit court

would have been required by statute to hold the hearing. Therefore,

I would instruct the circuit court to conduct an evidentiary hearing

in order to establish what effect, if any, those drugs had on

defendant’s fitness during the proceedings. As this court

acknowledged in Neal, in certain cases, “circumstances may be such that the issue of defendant’s fitness or lack of fitness at the time ***

may be fairly and accurately determined long after the fact. In such

cases, Burgess will apply.” Neal, 179 Ill. 2d at 554. I, therefore, would instruct the court to follow the precedents of this court as set

forth in Burgess, Neal, Cortes, and Kinkead II.

	II

	Today’s result sends the unfortunate message to the bench, the

bar, and the public that “this court does not decide issues based on

the law, but based instead on who happens to be sitting on the court

at a particular time.” People v. Lewis, 88 Ill. 2d 129, 170 (1981) (Clark, J., concurring). In this respect, Justice Clark’s sentiments,

expressed almost two decades ago, have resonance today:

		“It is my considered opinion that, having once expressed

my disagreement with an opinion of the court and then

having followed such opinion in a case which was decided

shortly after, it would be inconsistent to reverse my

position simply because a new justice has joined this court.

I agree *** that the doctrine of stare decisis does not mean that the law is immutable and rigid. On the contrary, I am

a firm believer in the continuing evolution of our law and

of the requirement that it change to meet changing

circumstances. I think, however, that the circumstances

which warrant changes in the law do not include changes

in personnel. Rather, the circumstances I consider

significant enough to bring about changes in the law are

those which render an existing rule of law impracticable or

unjust and which will bring about a sensible and just result.

When those changes are present, I will vigorously vote to

change the law.

* * *

			*** [O]nce a judge has expressed a differing view from

the majority, and has then acquiesced in the majority view,

to the point of writing an opinion which accords the

majority’s view its rightful place as the controlling law on

the matter, due regard for the consistency of the court’s

opinions leads a judge to continue to follow the majority’s

view.” People v. Lewis, 88 Ill. 2d 129, 169-71 (1981) (Clark, J., concurring).

	Moreover, Justice Clark’s view of stare decisis is not at all novel. This court, in a per curiam opinion, observed just five years ago that:

		“The doctrine of stare decisis is the means by which courts ensure that the law will not merely change erratically, but

will develop in a principled and intelligible fashion. Stare decisis permits society to presume that fundamental principles are established in the law rather than in the

proclivities of individuals.” Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994).

See also People v. Fuller, 187 Ill. 2d 1, 23 (1999) (Bilandic, J., dissenting) (noting that stare decisis “should not be disregarded simply because some members of the court disagree or have

changed their minds”). By joining in Burgess, Neal, and Cortes, Justices Miller, Bilandic, and Heiple ceased to voice their spirited

dissents on this issue and to challenge the legal analyses contained

in Brandon and its progeny. The three dissenters, in those cases, did not question, as they do today, the legal underpinnings of the earlier

decisions. To the contrary, they merely changed the remedy for the

alleged violation–from automatic reversal to an after-the-fact, case-

specific inquiry. Therefore, I respectfully disagree that the doctrine

of stare decisis must be overridden today on the basis that our case law in this area was incorrect. Although the three original Brandon dissenters consistently voted against the automatic reversal rule

created in Brandon, they were instrumental in creating the retrospective approach they now criticize as “confused and erratic.”.

Had they indeed felt that way, they should never have voted to

adopt Burgess in the first place.

	As I have endeavored to show by my review of our precedent,

not one circumstance has changed in our psychotropic drug

jurisprudence since this court announced its decision in Burgess. All of the legal arguments set forth in today’s opinion are the same

arguments that were made and considered at the time Brandon and Nitz were decided. These same arguments were in existence when the court issued Burgess. The only “circumstance” that has changed since this court announced Burgess is that Justice John Nichols, who joined in Brandon, authored Gevas, joined in Kinkead I and II, and joined in Birdsall, Nitz, Britz, Kidd, Burgess, Neal, and Cortes, has retired, and Justice Rathje has been appointed to fill the vacancy

created by the retirement. I submit that this type of “circumstance”

does not rise to the level necessary to overturn the doctrine of stare decisis. 

	Unfortunately, today’s decision demonstrates that “[p]ower,

not reason, is the new currency of this [c]ourt’s decisionmaking.”

Payne v. Tennessee, 501 U.S. 808, 844, 115 L. Ed. 2d 720, 748, 111 S. Ct. 2597, 2619 (1991) (Marshall, J., dissenting, joined by

Blackmun, J.). As noted throughout this dissent, neither the law nor

the facts supporting the Brandon/Burgess rule underwent any change since the time that this court issued its last psychotropic

drug case, Kinkead II, in 1998. Only the personnel of this court did. One must now wonder how many other of our previous decisions,

decided by 4-3 margins, will be similarly overruled on the basis of

a change in court personnel. I must stress again that neither party

in this case asked this court to revisit Brandon and its progeny. The court acts today sua sponte. If this court can so cavalierly disregard its own precedent, we surely cannot expect others to follow it nor

can we justly criticize those who do not. Today’s imprudent action

invites nothing but open defiance of our precedent and seriously

undermines this court’s legitimacy. Clearly, there is no genuine

reason not to apply Burgess to the present case, and the court’s attempt to style its decision as one made to restore “some stability

and reason to this area” (slip op. at 19) is beyond credulity. It is

obvious to me, at least, that four members of this court are willing

to discard any principle of constitutional law that, in the past, was

recognized over the votes of three dissenting justices and with

which four justices currently disagree. This does not bode well for

the future. At the end of this current year, the makeup of this court

will undergo some change because four justices by virtue of election

or retention may not return. While I am not clairvoyant, I do know

that when the court reconvenes in January 2001, the current

makeup of the court will have changed. It is my sincere hope that

this case will not serve as a model for future courts to follow.

	CHIEF JUSTICE HARRISON and JUSTICE McMORROW

join in this dissent.