People v. Mitchell

(No. 83281.

THE PEOPLE OF THE ILLINOIS, STATE OF Appel-

lee, MITCHELL, v. ANTHONY Appellant. Opinion January Rehearing April denied 2000. filed 2000. Hartman, Defender, Marshall J. Deputy and Anna Ahronheim, of Defender, the Office of the State Appellate Chicago, appellant. (Joel

James Ryan, General, E. Attorney Springfield Bertocchi, General, D. Solicitor L. William Browers Glick, General, Michael M. Attorneys Assistant Chicago, counsel), for the People.

JUSTICE RATHJE delivered the opinion of the court: A jury defendant, Anthony Mitchell, convicted of two degree counts first The jury murder. same also determined that defendant eligible for the death and penalty there were no mitigating factors suf- ficient to preclude imposition of the death penalty. Accordingly, the circuit court of Clair County St. sen- tenced defendant to death. review,

On direct we affirmed defendant’s conviction (1992) Mitchell, People v. and sentence. Ill. 2d 274 (Mitchell I). The United States Court denied Supreme Il certiorari. Mitchell v. defendant’s for a writ of petition linois, 508 U.S. L. Ed. 2d 113 S. Ct. 2936 (1993). 7, 1993, On December defendant filed a petition relief, for post-conviction 16, 1996, and on May defen dant an petition. filed amended The State to moved evidentiary dismiss amended without petition hearing. Defendant then filed three additional claims relief, post-conviction based on this court’s decisions Brandon, People v. People (1994), 162 Ill. 2d 450 and (1996). Nitz, 173 Ill. 2d 151 The court allowed State’s motion against to dismiss stand the additional counts. granted dismiss, The court the State’s motion to and this appeal judgment followed. Because the challenged death, a sentence of petition imposed ap- 651(a). R Ill. 2d directly this court. 134 was taken peal

BACKGROUND stabbing from the arose convictions Defendant’s July Lieneke David and Dawn teenagers deaths investigation the crime and detailing The facts 1989. original are set out in our defendant’s arrest leading to Ad- summary here. only a brief provide and we opinion, to address necessary be noted facts will where ditional raises. arguments the particular On with their grandparents. David and Dawn lived 4, 1989, were out July grandparents their evening ap- The returned home at bingo. grandparents playing and found David’s and Dawn’s p.m. 10:30 proximately lying David was a pool bodies. Eighteen-year-old dead times. hallway. in the He had been stabbed seven of blood had died deep, David large The wounds were liver and by caused stab wound from blood loss wound to lungs, of both due to stab from the collapse pool in a Thirteen-year-old lying his chest. Dawn was grandmother’s on her bed. She also had seven stab blood body, through in her one that went including wounds her brain. bled to right penetrated Dawn temple knife to the aorta and liver. death from wounds the license tracing located defendant police of his sister’s car. Defendant had been driv- number plate had car on the of the murders. Witnesses ing night to the car at the Defendant confessed spotted the scene. had to the Lienekes’ house crime, gone that he explaining Williams, had defendant claimed looking for Viroon who day to run him down a car the before and who tried with VCR, radio, game from defendant’s had stolen a and video stayed with house. Williams sometimes mother’s the house and stabbed Defendant into Lienekes. went David, she and then killed when screamed Dawn and ran into the David was still alive name bedroom. Williams, stabbed so defendant threatening tell again. him

In addition confession, to defendant’s the State relied upon testimony Douglas, Maurice who was with defendant on the night of the murders. Defendant showed the bloody Douglas knife and told him that he just had killed two persons. The police recovered the murder weapon survival knife —from defendant’s —a it, basement. The knife had on blood and the blood was consistent with a mixture of David’s Dawn’s blood. police also recovered black clothes and a pair two- toed pair shoes. Blood of pants recovered from defendant’s basement was consistent with Dawn’s blood. One of the two-toed shoes matched a shoe print left in the mud near where defendant’s sister’s car was parked seen neighborhood. the victims’ Defendant any testified and denied involvement the crime. testimony Defendant’s suggested that Wil- liams was murderer. Defendant denied owning the knife, clothes or the 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 that he saying persons. killed two Defendant testified that made police sign him by confession raising their voices.

Defendant was convicted the murders and sen- tenced death. After his convictions sentence were for a writ of cer- affirmed petition court and his tiorari to the United Supreme denied, States Court was filed post-conviction petition. As twice amended, defendant’s post-conviction petition contained counts, however, counts. Eleven restated constitu- tional arguments rejected were on direct In appeal. dismissing without an petition evidentiary hearing, the trial court majority ruled that of defendant’s judicata. waiver and res claims barred by were As to counsel, claims of ineffective assistance of the court ruled that defendant had made a substantial showing rights that his constitutional had violated. been to of defendant’s one found merit

The trial court argued Nitz. Defendant on and Brandon claims based taking sentencing he was of his trial and at the time that epilepsy Depakote and to control his two medications — psycho phenobarbital these medications were —and process tropic. denied due he was Defendant contended he and that a fitness he did not receive when when his of counsel assistance the ineffective received right attorneys appellate to his failed to invoke trial agreed Depakote hearing. a The trial such therefore that defendant medication hearing. Ill. fitness See entitled a would have been 21(a); par. Brandon, 38, 162 Ill. ch. Stat. Rev. 104— that defendant However, the trial court ruled 2d 450. seeking prevail on this claim because could not application of a “new rule” benefit from the retroactive analysis on The court its announced Brandon.1 Teague based 334, 109 Lane, 288, 103 L. Ed. 2d S. 489 U.S. v. (1989); People Flowers, 138 Ill. 2d 218 v. Ct. (1990), except in that, held certain limited situa which procedure of criminal are tions, constitutional rules new retroactively pending applied collateral to cases not Accordingly, the trial court dismissed review. hearing. evidentiary

petition Defendant raises without appeal. six issues on

ANALYSIS Standard of review pursuant petition Hear- A to the Post-Conviction filed 1998)) (West (the Act) (725 seq. ing et Act ILCS 5/122—1 prior sentence. a conviction and is collateral attack on a taking psychotropic if a defendant 1 Brandon held attorney sentencing, and does the time of or medication at trial hearing, the defendant has request a section is entitled of counsel and received the ineffective assistance Brandon, 162 2d at 458-61. trial. Ill. new (1995). People Mahaffey, To obtain Act, relief under defendant must establish deprivation substantial of federal or state constitutional rights in the proceedings judgment produced be (West 1(a) ing challenged. 1998); 725 ILCS People 5/122 — (1997). v. Tenner, 372, 175 Ill.

An evidentiary hearing on the is petition required only when the allegations of the petition, supported the trial and record accompanying affidavits, make showing substantial aof violation of a constitutional (1998). right. People 404, v. 182 Ill. 2d Hobley, For purpose determining grant whether an eviden tiary hearing, all well-pleaded facts in the and in petition the supporting affidavits are to be taken as true. People (1989). Caballero, v. 248, 126 Ill. 2d If the circuit court determines petition should be dismissed without an evidentiary hearing, its judgment subject is Coleman, de nova People 366, review. 183 Ill. 2d (1998). 388-89

Psychotropic Medication Defendant argues that he was denied due process he when did not receive a hearing to determine his fit- ness for trial while under medication. The statute in ef- fect at the time of his trial provided, part, as follows:

“A receiving drugs defendant who is or other under is medications medical direction entitled to a hearing on the issue of his fitness while under medication.” 21(a). Il Rev. Stat. par. l. ch. 104 — Defendant argues further received the ineffective assistance of counsel when his trial attorney failed to right invoke his to fitness hearing and when his counsel on direct failed to raise the due inef- appeal process and they fective assistance of counsel arguments as related to his failure to receive a section hearing. claim, The factual basis for as provided defendant’s in his and post-conviction petition accompanying af- from has suffered follows. Defendant fidavits, is as age a head epilepsy suffered six, when he since the taking injury. seizures, has been To control his years. During many trial and sentenc- medications for ing, Depakote epilepsy and medications were phenobarbital. aware that defendant The court was trial epilepsy. taking medication categorizes Depa Physicians’ Desk Reference subcategory agent,” “antimanic kote as an which agents.”2 Physicians’ “psychotherapeutic Desk Reference 1999) (PDR). (53d pe to his Defendant attached ed. pharmacol O’Donnell, a of Dr. James tition the affidavit ogy in the affidavit that O’Donnell states consultant. Depakote phenobarbital central are both nervous prevent system depressants prescribed to that are probable epileptic side ef seizures. O’Donnell lists the drugs dizziness, “sedation, hallucinations, fects as changes depression, incoordination, emotional aggression.” psychosis deterioration, behavioral “[t]he further O’Donnell states that combination drugs effects of both of these can cloud the sensorium (alter ability [sic] clearly) to think and thus effect ability any individual’s to make certain decisions.” “[t]he O’Donnell overall sedative effect concludes that may appear or caused Mr. Mitchell to too relaxed have during proceedings.” too detached deciding arguments, Before the merits of defendant’s phenobarbital we address the State’s contention that People Depakote In v. are not medications. (1996), adopted the defini Britz, 163, Ill. 2d 198 we “psychotropic Mental found in the tion medications” Developmental Code: Health and Disabilities “ ‘Psychotropic medication whose medication’ means listing “Psychotropics,” only list PDR has a but the 2 The heading Psychotherapeutic ing says “see under under 1999). (53d Physicians’ Agents.” ed. Desk Reference antipsychotic, antimanic, use for antidepressant, antianxi- ety, behavioral modification or management behavioral purposes Drug Evaluations, is listed in AMA edition, latest Physicians’s Reference, edition, or Desk or latest which are any administered for of these purposes.” 405 ILCS 5/1— 1998). (West 121.1 given by We further relied the definition the United Supreme Washington Harper, States Court v. 494 U.S. (1990): 210, 108 Ed. 178, L. 2d 110 S. Ct. 1028 “[Plsychotropic drugs are commonly ‘medications used in treating mental schizophrenia,’ disorders such as the effect brain, of which ‘to alter chemical balance in the being desired result the medication will assist patient organizing thought his or her processes and ” regaining Britz, a rational state of mind.’ 174 Ill. 2d at Ed., 198, quoting Washington, 214, 494 U.S. at 108 L. 2d at 193, S. 110 Ct. at 1032. Depakote psycho The trial court found that was a tropic drug, phenobarbital merely but that “an anti agree Depakote convulsant barbiturate.” We falls 21(a)’s purview within the of section reference to 104— drugs “psychotropic or other medications.” Ill. Stat. Rev. 21(a). par. Depakote ch. is listed in the 104— psychotherapeutic agent as PDR a antimanic and thus clearly falls within Further, the Britz definition. Dr. O’Donnell stated his affidavit that the combination of Depakote phenobarbital affect could the individual’s ability clearly to think and to make certain decisions. We agree ingestion Depakote thus with defendant that his would have entitled him to a fitness under sec 21(a). unnecessary tion This conclusion renders phenobarbital discussion of whether fits the Britz defini tion. People Kidd,

Our decision is not in conflict with (1996), Ill. another in which a case argued epilepsy psychotropic medication awas drug. taking Kidd, In the defendant was Dilantin to applied control his seizures. We the Britz definition and psychotropic medication not Dilantin was held that psychotropic purposes not listed for its use because Drug Further, Evaluations. PDR or the AMA in the psycho being for to the defendant administered was not By contrast, tropic purposes. 17-19. Kidd, 175 Ill. psychotherapeutic Depakote an as a is listed in the PDR squarely medication, within the thus falls timanic Britz definition. arguments. defendant’s turn to the merits of

We now finding argues erred that the trial court Defendant retroactively applied to cases could not be that Brandon pending points review, and out that Nitz on collateral (1997), People both cases Neal, Ill. 2d 541 were post-conviction applied Brandon in which this court that it did not raise the cases. The State counters Flowers/ retroactivity Teague therefore rule in those cases and yet According to has ruled on this issue. this court Flowers/Teague application State, rule bars petitioner’s is case. need not address this Brandon We sue, however, the dismissal of defen as we believe that proper for dant’s medication claims was other reasons.

Due Process argument that he was first address We process he the fitness when did not receive denied due hearing to which entitled. Petitioner’s claim— a section denial genesis process Nitz, In due its Nitz. denial of —has first time raised a Brandon issue argued post-convictionpetition. that Brandon The State argue applicable the defendant did not was not because assistance of counsel. that he received ineffective lacking Thus, a constitutional defendant's claim was rejected argument and held We foundation. State’s statutory the relevant court’s failure to follow that the process procedures de to the in a due violation resulted Nitz, Ill. 2d at 160-61. fendant. Nitz was as follows. The due pro

The reasoning cess clause of the fourteenth amendment prohibits prosecution aof defendant who is unfit for trial. U.S. California, Medina v. Const., XIV; 437, amend. 505 U.S. (1992). 353, Ed. L. 112 S. Ct. 2572 Where infor mation raises the possibility an accused is incompe tent, the failure to inquire concerning competency violates accused’s Pate v. Robin rights. due process son, (1966) 375, 815, 383 U.S. 15 L. Ed. 2d 86 S. Ct. 836 (holding that the Illinois court’s failure to invoke the rel statutory evant procedures deprived the defendant of an inquiry concerning his fitness to trial, stand and defen violation). dant therefore suffered due process The rel evant statute —section 21(a)—provides for fitness 104— hearing, and therefore the court’s failure invoke denied defendant an inquiry into his fitness for trial and Nitz, him consequently process. denied due 173 Ill. 2d at 155-61.

Nitz correctly recognized that due process does not mandate a particular procedure for an inquiry into fit ness; it requires only that there an adequate be proce dure to implement to an inquiry. Nitz, right 160, 2d citing Drope Missouri, 420 U.S. 43 L. (1975). Ed. 2d Nitz further correctly 95 S. Ct. 896 recognized that the particular procedures to be invoked purely legislative are design right and that ato Nitz, particular procedure wholly is statutory. Ill. 2d at 160. in Nitz that defendant’s right

Although recognized we 21(a)’s to section procedure wholly statutory, was we reached somewhat contradictory conclusion that the trial court’s failure invoke the statute denied de- Nitz fendant due The process. passage relevant our is Pate, that, “Here, conclusion as in because no procedure invoked, was defendant was denied into the inquiry issue Nitz, of his fitness. Due process thereby denied.” not follow from the conclusion does Ill. 2d at 161. This to be invoked is procedure that the recognition particular right and that by legislative design purely Three members wholly statutory. that procedure that a defendant’s Nitz, on the basis dissented court hearing was statu right to section 104— dep a constitutional creating and that tory Nitz, 173 Ill. 2d at See rivation where none existed. Bilandic, C.J., and (Miller, J., joined by dissenting, 165-66 J.). peti concluded that defendant’s dissent Heiple, (which did not ineffective assistance argue tion counsel) it lacked a been dismissed because should have After careful consideration foundation. constitutional reevaluation, the dissent’s have determined that we in correct and that this erred position Nitz was a hear holding that a denial of section fitness of itself a due violation. process was ing distinguish to the United States Nitz, In we failed case, in Pate. In that Court’s decision Supreme the defendant should have Court held that Supreme intro- a fitness because evidence hearing received of his a bona doubt duced on his behalf established fide 385, 822, at 15 L. Ed. 2d at S. Pate, 383 U.S. fitness. into the The failure to inquire Ct. at 842. court’s establishing of evidence a defendant’s fitness the face of his the defendant of deprived bona doubt fide Pate, a fair trial. 383 U.S. at right his constitutional to 822, 385, Supreme Ed. 2d at 86 S. Ct. at 842. L. holding Drope: later its explained Court Pate 815, Robinson, 375[, “In 15 L. Ed. 2d Pate 383 U.S. (1966), Ct. we held that the failure to observe 836] S. right to defendant’s not to procedures adequate protect a incompetent to trial or stand be tried convicted while Al- right a fair trial. deprives process him of his due to ‘jealously Illinois though in Robinson noted we failure of id., at held that the guard[ed] right,’ we statutory procedures courts to the state invoke deprived inquiry Robinson of the into issue of his com petence which, case, to stand trial to on we facts of concluded was constitutionally entitled. The Court did procedure prescribed Stat., not hold that the by Ill. Rev. ch. (1963), § mandated, 104—2 constitutionally was al though central to its discussion was the conclusion statutory procedure, followed, constitutionally ade if quate. prescribe general [Citations.] Nor did the Court a respect quantum standard with to the nature or of evi necessary dence require to resort to adequate proce Rather, dure. it noted that under the Illinois statute hear ‘ ing required where the evidence raised a “bona fide ’ doubt” to competence, as a defendant’s and the Court concluded ‘that the evidence introduced Robinson’s ” behalf entitled him to a hearing (Emphasis on this issue.’ added.) Drope, 172-73, 113-14, 420 U.S. at Ed. 2d L. 95 S. Ct. at 904.

Thus, Drope clearly recognized that Illinois’ statu tory procedure requiring a fitness when there — is a bona doubt of defendant’s fitness —was constitu fide tionally adequate safeguard a defendant’s due process right not or be tried convicted while unfit to stand trial. The Nitz hold, Court as Supreme implies, did any the failure concerning follow statute fitness for deprives trial a defendant of due Nitz, process. See the Nitz 173 Ill. 2d at 160-61. Under rationale, if the legislature passed statute entitling defendants professional wrestling who watch to a hear ing on their mental fitness, court’s failure to follow the statute a of would be denial due process. This cannot be As Nitz correctly so. recognized, “due does not process any particular mandate procedure it inquiry; merely that there requires be an adequate procedure to Nitz, to an implement right inquiry.” 173 Ill. 2d at 160. has United States Court determined Supreme

the constitutional of the Illinois adequacy statutory scheme of a requiring hearing fitness when there is a Thus, Illinois has fitness. doubt of defendant’s bona fide constitutionally adequate procedures place are right process protect not be tried a due everyone require process not Due does while unfit.3 taking “psychotropic under medical or other medication” hearing. granted a fitness Section direction should be 21(a)’s statutory right granted merely provision is a 104— right legislature legislature has now that the —a 1998). (West 21(a) away. See 725 ILCS taken 5/104— rights, alle and the not confer constitutional Statutes do gation right statutory proper deprivation is not a of a of a People claim Ill. 2d Orndoff, the Act. v. under (1968). statutory determining fit scheme for The Illinois comports process or with due with without section ness 21(a) hearings. that a de fitness Nitz’s conclusion 104— post-conviction may petition denial raise in a a fendant 21(a) hearing of as a denial due a section 104— hereby process erroneous, and we overrule Nitz. largely on this Nitz’s conclusion was based court’s ingestion psycho equating a continued of defendant’s tropic medication with bona doubt of defendant’s fide genesis position Brandon, its al fitness. This has though People specifically until not articulated (1995). Brandon, In stated that Gevas, 166 Ill. we 21(a) recognition by the General section “evinces a Assembly psychotropic important medication is an signal may competent not to stand that a defendant be specifi Brandon, Gevas, In 162 Ill. 2d at 457. we trial.” equated cally legislature that, “The has stated administering medication to defendant to stand trial.” Ge a bona doubt as to fitness with fide have vas, 2d at 469. Three members this court right position that the to fitness taken equated a bona cannot be with section 104— fide argue Constitution af- the Illinois 3Defendant does greater protection regard. in this fords him 330

doubt of a defendant’s fitness and is much broader than right constitutional with which it is People mistaken. (1996) Birdsall, v. 464, Ill. (Miller, J., 172 482 dissent J.). joined ing, by Bilandic, C.J., Heiple, jus These tices have pointed that, out under 21(a), section a 104— taking or other psychotropic medication is entitled to fitness hearing “even in the of absence evi dence might that otherwise trigger into inquiry right.” Birdsall, 172 Ill. 2d at constitutional separate (Miller, J., dissenting, Bilandic, C.J., joined by J.). 21(a) As Heiple, stated, section previously 104 — merely contained statutory right conferred legislature. legislature The has now rewritten statute right. constitutional, remove that If the right was legislature could not have eliminated it.

This court’s determination prior legislature equated ingestion of medication with a psychotropic bona doubt of defendant’s fitness was errone simply fide 11(a) ous. Section of of the Code Criminal Proce 104— (the Code) (725 (West dure ILCS 5/104 — 1998)) provides, in part, “[w]hen a bona fide doubt of the raised, is the court shall order a determination the issue before further.” proceeding 21(a), time, Section at the relevant provided that receiving “[a] defendant who is drugs or other under medications medical direction is entitled to a hearing on the issues of his fitness under medication.” while 21(a). 38, Il Rev. l. Stat. ch. par. 104— The wording provisions these is significant. places first a mandatory burden on the trial to or judge of a defendant’s fitness when a bona der a determination People Reed, doubt fitness is raised. See fide (1997) (“use Ill. 2d ‘shall’ word is generally express mandatory reading”); considered to (6th 1990) (“[a]s Black’s Law Dictionary 1375 ed. used statutes, contracts, like, [shall] or the im- generally merely provision mandatory”). perative The second or taking psychotropic other provides or a defendant ato fit is entitled medical direction under medication “ ” “ give hearing. means ‘to a ‘entitled’ The word ness right ” (Brandon, legal 461, Ill. 2d at 162 title to’ or (6th 1990)), Dictionary quoting or ed. 532 Black’s Law grounds proper qualify “[t]o for seek for; to furnish with (6th (Black’s Dictionary claiming” ing 532 ed. Law or 1990)). People App. 973, Tilson, 108 977 v. Ill. See also (1982) (“the granting signifies of a word ‘entitled’ option parties right privilege to at the of or be exercised directly opposed used; to the it it is for benefit is whose limitation”). imposing obligation or Section idea 21(a) require 11, not, as does section does 104— 104— judge inquiry facts make further when certain trial to a gives brought Rather, defen his attention. it are seeking grounds claiming” “proper a fit or dant hearing. stated, has sec As Justice Miller “While ness 21(a) receiving that a defendant tion psychotropic declares 104— hearing,

drugs to a is entitled fitness incompetency, a defendant’s statute does establish say hearing a if the defendant refuses that must be held hearing request a in a one, counsel’s failure to or excuse (Miller, timely J., Gevas, 166 2d at dis manner.” Ill. J.); senting, joined by Heiple, Bilandic, C.J., see also (1995) (Miller, People J., Kinkead, 168 Ill. 2d J.) (“[t]o Heiple, dissenting, joined C.J., and Bilandic, hearing say is to a fitness defendant is ‘entitled’ absolutely saying different from much required tardy how circumstances, no matter all be”). request might when We erred Gevas implied, stated, in Brandon we when administering legislature equated a bona doubt as to to a defendant with medication fide longer trial, and no adhere to that fitness to stand we his conclusion. Assistance Counsel Ineffective argues

Defendant also that he received the ineffec appellate tive assistance counsel when trial and his at 21(a) torneys right failed to invoke to section 104— hearing. fitness We first address whether defendant appellate received the ineffective assistance of counsel attorney argue appeal when his failed direct process he was denied due when the trial court failed to hearing. prevail hold a section To aon counsel, claim of ineffective assistance of the defendant (1) performance must show that counsel’s was so seri ously objective deficient as fall below an standard of prevailing professional norms, reasonableness under (2) performance prejudiced the deficient so the defendant deny Washington, as to him a fair trial. Strickland v. 668, 687, 674, 693, U.S. 80 L. Ed. 2d 104 S. Ct. (1984). applied involving As to claims the failure of appellate particular issue, counsel to raise a the defen dant must show that the failure to raise the issue was objectivelyunreasonable that, but for this a failure, probability reasonable exists that the sentence or convic People tion would have Mack, been reversed. v. (1995). Appellate obligated 2d 525, 532 counsel is not to every appeal, brief conceivable issue and it not in is competence raising of counsel to refrain from issues that judgment People Whitehead, his are without merit. v. (1996). 355, 169 Ill. 2d 381 prong

Defendant cannot meet the first of the Strick- arguing appellate land test counsel should have argued process that he was due denied when the court sponte hearing failed to hold sua a fitness when it found taking out that defendant was medication. thoroughly opinion, As set out earlier this defendant’s 21(a) right hearing to a fitness a under section 104— statutory right. rather than a constitutional At the time appeal, of defendant’s direct no Illinois court had held sponte that a trial court’s failure to order sua a section

333 21(a) of due defendant a hearing deprived fitness 104— had would have therefore attorney Defendant’s process. reach about to this court was reason to believe no would have existing case law Further, that conclusion. See argument was meritless. indicated that Balfour (7th 1989); People Lopez, v. Haws, F.2d 556 Cir. v. 892 148 (1991); App. v. Ill. People Balfour, Ill. 83 App. 216 3d Tilson, Ill. 3d 973 App. (1986); People (1982). decision not attorney’s Clearly un objectively was not on direct appeal raise issue reasonable. was ineffective trial counsel

We next address whether appel a and whether requesting hearing for not fitness trial failing argue for late counsel was ineffective a hear requesting in not fitness counsel’s ineffectiveness standard for as first consider the relevant ing. We must for fail assistance of counsel sessing claims of ineffective In hearings. request section fitness ing Brandon, standard, but then held cited the Strickland we of Strick prejudice prong that a defendant could meet that, have attorney if would merely by showing land one. gotten fitness he would have hearing, requested Brandon, Ill. 2d at This was an unwarranted 458-59. rule. modification of Strickland under Strickland prejudice To establish that, show a reasonable but counsel’s probability must errors, result of the would proceeding unprofessional L. Strickland, U.S. at been different. have 2068. the Brandon dissent Ed. 2d at 104 S. Ct. at As noted, in this case is correctly inquiry “the relevant if have been conducted would whether 104— one under section defense counsel had requested would 21(a), hearing outcome of the but whether is, defendant, whether have been favorable to the trial. found unfit to stand defendant would have been a hear- only whether majority, by considering The (Brandon, ing would been have held 162 Ill. 2d at 457- 59), simply presumes existence of prejudice certain circumstances in which a such not presumption is war Brandon, (Miller, J., ranted.” 2d at Ill. 462-63 dis J.). senting, joined by Bilandic, C.J., Heiple, Clearly, defining the test as whether would have received a fitness cannot be correct. If a defendant would been trial, have found fit to stand he suffered no not prejudice by having fitness hearing. correct test evaluating prejudice these situa- tions is whether a that, reasonable probability exists if defendant would have received the section fit- ness hearing entitled, to which he was the result of the proceeding have would been that he was unfit found to Brandon stand trial. is overruled.

We now whether consider trial attorney for failing ineffective to We request hearing. will not find this claim waived for to defendant’s failure raise it on direct because it appeal depends facts outside Whitehead, original trial record. See 169 Ill. 2d at carefully 372. After reviewing the record evi dence attached the post-conviction to petition, we cannot say that there awas reasonable probability defen dant would have been unfit found to stand trial. Code,

Under section of the 104—10 a defendant “if, unfit for trial because of his or mental condi- physical tion, he is unable understand the nature and purpose proceedings against him or assist Here, claim any defense.” the record belies that defen- dant the proceedings did understand the nature of or was unable to assist in his defense. Defendant’s ex- with the trial do not changes judge any confusion display about proceedings, nature defendant as- sisted in his defense in his testifying own behalf. De- fendant testified his whereabouts the relevant times, crime, denied any involvement and asserted

335 Defendant’s was coerced. police the confession proceed- of of report over the testimony pages covered confusion about any signs of and does not disclose ings Similarly, de- purpose proceedings. the nature or of his mo- testimony support fendant extensive gave evidence, and there is and tions to statements suppress did not understand that defendant no indication or of those proceedings. nature purpose of a Kinkead, importance In we downplayed fitness, determining trial court demeanor defendant’s into stating encouraged “unprincipled speculation that it Kinkead, Ill. expertise.” matters medical requiring the fundamental 2d at 411. This fails to consider position solely fitness is to determine purpose hearing, of a which of trial. ability a to function within the context a person’s (1978). statute, By 72 Ill. 2d People Murphy, a fit evidence matters is admissible at following ness hearing:

“(1) knowledge understanding and of The defendant’s proceedings, consequences plea, charge, judgment sentence, participants the functions of the or and process; in the trial

(2) ability observe, The defendant’s recollect occurrences, concerning especially relate those the inci- counsel; alleged, dents and to communicate with (3) abilities; The defendant’s social behavior and orienta- recognition persons, places tion to time and place; as performance processes.” things; motor 16(b) (West 1998). ILCS 5/104 — record, demeanor, trial as evidenced Defendant’s in the clearly Nothing relevant to these factors. record indicates be found unfit based on that defendant would these consideration of factors. rely on trial judge

We that a trial cannot recognize hearing a fitness the face dispense demeanor to with fitness of a bona doubt of defendant’s evidence fide (Pate, 385-86, 15 L. Ed. 2d at 86 S. Ct. at 383 U.S. here; 842), not there is no evidence but that is the issue a bona in the record suggesting doubt of defendant’s fide fitness. The issue here is whether a reviewing court ignore should relevant and compelling evidence of a fitness for trial when determining whether outcome of statutory would have been favorable to defendant.

The evidence that defendant attached his post- conviction petition does show a reasonable prob- ability First, defendant would have been found unfit. it must be remembered that defendant was taking not these medications for any underlying psychiatric prob- He merely taking lems. was them to control seizures. Thus, real only question is whether medica- these tions and of themselves rendered for defendant unfit trial. O’Donnell’s affidavit established that the combina- of tion might defendant’s medications have affected ability certain make decisions. O’Donnell also believed that the medication have may caused defen- dant too or appear during relaxed detached proceedings. O’Donnell’s affidavit does simply not estab- lish that defendant would not have been able to under- stand the and nature or to purpose proceedings as- sist in his defense.

Defendant also attached to his petition the affidavit of clinical In psychologist Michael M. Gelbort. the affida- vit, learning Gelbort testifies to defendant’s disability, school, difficulty in retardation, borderline mental seizure disorder, and In difficulty light information. processing the factors that trial court considers in determining trial, there is no reasonable probability defendant would have been unfit found based testimony. Gelbort’s

The facts of this The Murphy. case are similar to is- bona Murphy sue in was whether there was doubt fide trial the defendant’s fitness such that the court should case, In hearing. have ordered a fitness psychiatric mentally defendant established that evidence “ procedures only simple ‘understand retarded could having complicated mean those abstract not ones or but ” ings.’ Murphy, defendant had Ill. at 426-27. The vocabulary above the first- and could read limited a grade in his own However, testified the defendant level. attorney was and behalf, he knew what said that attorney representing him, and that his understood signed he and said that statement read aloud from thing. Murphy, Ill. 2d 429. could read the whole previously police told the had holding rights. In that the rec understood his Miranda supported the trial court’s conclusion no bona ord existed, we stated that of defendant’s fitness doubt fide mentally handicapped “an educable evidence showed comprehended recog young his situation man who against purpose proceedings nized the nature represent attorney him. him and function of an attorney] presenting [his cooperated Defendant with Murphy, Ill. 2d at 434-35. his defense.” post-conviction The record and affidavits show that higher functioning than at a level the de- defendant was Murphy, fully nature fendant in understood the against cooperate proceeding in his him, and was able to probability There is no that defen- defense. reasonable unfit, and therefore defen- dant would have been found failing for to dant’s trial counsel not ineffective disposes request hearing. a This also of fitness conclusion argument appellate was ineffec- defendant’s counsel failing appeal. for to raise tive this issue direct right hearing sum, In that used to be to a fitness 21(a) statutory right. provided in section was a 104— right process A not due to such a defendant did have a hearing, obligation no to order sua and trial courts had 21(a) sponte hearing a if a defendant section request post-conviction case, Thus, one. in a did 338 will be only

claim considered if it is framed in the context of ineffective of assistance counsel. To such prevail on a a claim, must show a reasonable probability that, if section fitness hearing would have 104 — held, been he would have been found unfit to stand trial. areWe not unmindful of import today’s deci stare decisis Normally, sion. because of considerations, we would continue adhere to our prece established dent, even if disagreed certain members of this court In case, however, with it. deem we it appropriate stare decisis. Bar Ass’n Chicago from depart We stated Elections, v. Illinois State Board 502, 161 Ill. 2d that “stare decisis (1994), means by which courts merely ensure will not change erratically, law but will in a develop principled intelligible and fashion.” No reasonable observer this court’s jurisprudence argue could the law in has this area been developing in a principled intelligible As Harri fashion. Justice Bran People son in 1998, stated “This court decided don, (1994), 162 Ill. 2d 450 fewer than four years ago Kinkead, and has been running from it since.” ever (Harrison, at J., Ill. 2d specially concurring). 1995,

In we held after a had period years two passed impossible meaningful would be conduct hearing as to trial fitness at time of Gevas, sentencing. 1996, 166 Ill. 2d at 471. In we “rejected any notion that a nunc tune pro determination Nitz, of fitness can provide necessary reliability.” at Ill. 2d 164. In we problem saw no with retro spective fitness years conducted after defen trial and sentencing. Neal, dant’s 179 Ill. 2d at 553-56. In we held that the automatic reversal rule of Brandon had replaced been “case-by-case” ap proach that a defendant no on a longer prevail could for a request simply by showing new trial that he had taking psychotropic been the relevant medications

339 clearly not Although 182 at 340. Kinkead, Ill. 2d time. Kinkead, retrospective it appears stated constitutionally What was hearings are now norm. This is not a now years ago compelled. forbidden three As law. intelligible development and principled decisis in an rejecting when stare Justice wrote Heiple Brinkmann is not situation, “explicitly overruling other years In the since ‘erratic’change eighteen the law. Brinkmann, includ Brinkmann, every case interpreting its I holding. has eroded ing today’s majority opinion, done make what this court has merely explicit would years.” McMahan eighteen last implicitly (1998) Comm’n, 499, (Heiple, Industrial 183 Ill. 2d concurring). J., specially duty justices

Our as of the Illinois important most Court, other considerations are Supreme which all subordinate, correct under the is to reach the decision area has erratic law. Our become jurisprudence from confused, and it all stems an erroneous statu- decisis tory years ago. five Stare should interpretation mistake, not from our preclude admitting interpreting us correctly, bringing stability the statute some As reason to this area the law. Justice Frankfurter comes, observed, once “Wisdom too often never and so merely it comes late.” ought reject one because Co., & Henslee Bank Trust v. Union Planters National 290, 595, 600, U.S. 69 S. Ct. L. Ed. (1949) (Frankfurter, J., dissenting). The trial court cor- for post- defendant’s additional claims rectly dismissed conviction relief. at the

Ineffective Assistance Counsel Suppression Hearing to Establish “Fruit Poisonous Tree” Failure his was ineffec- attorney next argues Defendant suppress motions to evidence tive at the because failed to establish that the physical evidence recovered from defendant’s basement fruit was the of his arrest. direct unlawful On we held that defen appeal, due process rights dant’s were violated the trial court’s failure to recall critical testimony by defendant that defendant did not believe he was free to police leave custody. However, declined we to remand the matter for suppression hearing that, new because we concluded even if the trial court would find that defendant’s confes sion should have suppressed, been the other evidence guilt overwhelming defendant’s was so that introduction 1, of his confession was harmless error. Mitchell 326. We further held that had physical established that the recovered from evidence defendant’s basement was “fruit of the the poisonous I, tree.” Mitchell Ill. 2d at 326-27. argued

Defendant on physical direct that the appeal evidence from recovered his basement was fruit of illegal detention. Defendant reasoned that told the he that police he was Douglas night with Maurice on the the murders. The police questioned Douglas, and told them where the murder was weapon probably hidden. We held that the record did not establish Douglas that told police where the was hidden weapon and that argument solely conjecture. was on based establishing that Without informed Douglas police Ninja where defendant’s and the murder equipment hidden, weapon were defendant could not his initial meet burden of between showing connection his detention finding and the police’s evidence. petition

Defendant attached to his post-conviction hearsay Roberts, affidavit of investigator Gilbert Defender, with the office of State who Appellate Douglas interviewed In the affi- November 1993. davit, Roberts told him Douglas Douglas states police weapon told the where the murder probably made the has now that he contends Defendant hidden. physical showing evidence connection crucial trial and that his his unlawful detention fruit of was the failing attorney to make ineffective therefore hearing. suppression at the connection deciding, Assuming, can obtain an that one without hearsay upon evidentiary ev inadmissable based argument meritless. to be idence, find defendant’s we performance standard, counsel’s the Strickland Under that the defen if it can be shown evaluated need not be prejudice. People Albanese, 104 Ill. 2d suffered no dant (1984). prong prejudice To meet the 504, 527 “that demonstrate test, a defendant must Strickland probability that, but for counsel’s there is a reasonable proceeding unprofessional errors, would the result of Strickland, L. 466 U.S. at have been different.” find 698, 2068. We defendant’s 2d at 104 S. Ct. at Ed. argument we do not believe to be without merit because probability that the outcome shown a reasonable has hearing suppression if would have been different Douglas argued attorney the connec had made and tion. argued the if would have

We believe that defendant prevailed Douglas would have connection, the State discoveryexception the exclusion to under the inevitable ordinarily, ary recognize if does that, the State rule. We inevitable-discovery argument in the trial the not raise People argument considered waived. court, the will be (1990). case, In 84, this Holveck, 141 Ill. 2d 98-99 make that for the State to however, there was no reason argument suppression defendant because at the only argue found because that the evidence was did Douglas. police made Defendant defendant told the about appeal, argument the for the first time on direct police argued response that the brief then its State Douglas inevitably even without have discovered would defendant’s argued statement. in his direct appeal brief that the had reply State waived this argument. argue Defendant cannot the State waived its right argument to to an reply that defendant had not made. yet argument The State also made this the hear ing on the to motion dismiss the post-conviction petition, it, it, and hints at but does not in its ap current develop brief.4 We believe we can pellate properly consider argument we because are the only determining what outcome of the probable hearing would have suppression if attorney been have made argu would the ment that defendant contends he should have made. As the State discovery raised inevitable the response to Douglas made, argument first time it was we believe is reasonably likely would made State have argument if defendant Douglas had first made the argument at suppression hearing.

Under inevitable-discovery exception rule, exclusionary" evidence that otherwise be would may prosecution inadmissible be admitted if the can show “ inevitably the evidence ‘would have been discov ered without reference error or miscon police ” Edwards, People v. 108, (1991), duct.’ 144 Ill. 2d Williams, Nix v. 431, quoting 467 U.S. 81 L. Ed. (1984). 377, 390, 104 S. Ct. Professor LaFave that, has stated justifying “Circumstances application discovery’ ‘inevitable rule are most likely to be pres *** ent if were investigative procedures already prog ress W. prior discovery illegal to the via means.” 1996). (3d LaFave, 11.4(a), § Search Seizure at 249 & ed. Here, sta- before defendant was taken the police argues primarily 4The State that the evidence shows that just likely police was as Viroon the the that Williams told where assertion, however, weapon murder hidden. This does argument. police defeat defendant’s The also learned about Wil- liams from defendant. looking police car had seen for a that been

tian, were the police the had occurred. The the murders near where plate males and knew that two black license number car’s police car to traced the in the car. The were seen had that defendant been" sister and learned defendant’s police spoke night driving the also the car before. Doug- mother, that and who knew defendant defendant’s together night the murders. Defendant the las were years they Douglas were five had been friends since and Doug- Douglas’ that father also knew defendant old. together night Consider- las of murders. were ing simply accept evidence, cannot defen- the above we police found would not have dant’s contention that the Douglas night if the crime that was with him out they illegally police him. had not detained Before they defendant, in the car detained knew had been there was black male in the car. Given and that another thorough investigation that a into the violent murder Doug- teenagers underway, that two police speaking friends, that the las were were Douglas people knew and defendant had been who that together night, that it that we believe was inevitable Douglas police if defendant would have found even Douglas person told them who was had not was the with him.

Defendant has that the trial court erred not shown failing suppress physical from evidence recovered Assuming that the trial would have basement. sup- ruled that defendant’s confession should have been pressed, probability no the court there is reasonable physical sup- would have also ordered the evidence pressed. attorney argued would If defendant’s have only Douglas, police through that evidence learned of through police only Douglas about and the learned probability confession, is a there reasonable inevitable-discovery argued that the State would have rule. We the State would in believe have prevailed show- ing physical that evidence should not have been sup- if pressed, even the confession would have been. Accord- ingly, defendant has not established that his trial attorney ineffective at the suppression hearing for argue failing Douglas The court connection. cor- rectly dismissed this count defendant’s post-conviction petition.

Failure Establish that Not Would Have Defendant Been Able to Make a Valid Miranda Waiver Defendant next that his argues trial counsel was inef fective the hearing on the motion to when suppress failed to introduce that evidence would have helped to that making establish defendant was incapable valid waiver of Miranda his Defendant rights. similarly raised Miranda argument appeal, on direct but we declined to address it because already that, we had determined as suming defendant’s confession should have been sup its pressed, admission into evidence was harmless error. I, Mitchell 152 Ill. 2d at 330. Miranda argument

Defendant tries to revive relying post-conviction on affidavits that he believes help that he have been to make establish would unable waiver of his Miranda knowing, voluntary, intelligent the Mi- rights. however, Just as we held direct on appeal, randa issue is irrelevant given our determination that any error the admission confession Defendant suggests jurors harmless. would have given weight to his confession if had been they ap- less the degree of his intellectual defects. We fail to prised see contention our how this affects conclusion direct evidence, all of the defen- appeal remaining absent police, overwhelmingly dant’s confession to the so guilt any established his error the admission of Our holding his was harmless. on this issue confession judicata, is res appeal and the trial court did prior post- dismissing of defendant’s this count err petition. conviction for a Funds Refusal to Provide

Trial Court’s Expert Mitigation pro argues denied due he was Defendant next request pretrial court denied the trial cess when capital mitigation expert with the to assist to hire a funds hearing. agree sentencing that this the State We with have been raised it could because claim is waived judicata appeal. res of waiver and Considerations direct post-conviction range to a available of issues limit the been, petitioner that have not matters to constitutional adjudicated. previously Tenner, been, and could not have previously Rulings that were on issues Ill. 2d at 378. judicata, appeal and is are res or on direct raised at trial not, are raised, were have been but sues that could (1995). People 2d Coleman, 168 Ill. v. waived. argues waivedbecause that this claim is not Defendant original record. We trial on evidence outside is based post- exception disagree. rule to the waiver This appeals not that could refers to those claims conviction reviewing by court on direct been considered have evidentiary appeal de hors basis was the claim’s because Defendant Whitehead, Ill. 2d at 372. the record. through post-conviction affidavits that, claims investigation report, presentence people he critical of the prejudiced the trial that he was has now established why ruling. defendant is discuss are unsure court’s We ing question prejudice. trial is whether the The here denying defendant’s its discretion court abused mitigation specialist. request appointment See a for (1995). People The evidence Burt, presented necessary question is what was resolve that request made. at the time the to the trial court attorney nei- claimed that motion, In the public office had defender’s the staff of the ther he nor necessary skills prepare history life of defendant. At the hearing motion, on the defense counsel elaborated the public defender’s office did have adequate staff to mitigation prepare report dealing with defen- dant’s schooling, family histories, and work his medi- records, cal and his school However, records. defense court, record, counsel told the “for the I’m aware of no— certainly there is no statute or for basis this I’m request. not aware of and I any, also am not aware of any case same, law but, circuit allows the I believe very request important.” Defense counsel also maintained that did not believe the proba- tion department job. could do an adequate

The motion, trial court denied the and instead ordered the probation and court services department St. Clair County investigate defendant’s background and to in the of a prepare report nature presentence investigation report. Cheryl court also ordered Prost to conduct psychological examinations and tests on de fendant State, and to make the results available to the defendant, is, and the court.. The question light what court, defense counsel the trial did represented to the court denying abuse its discretion in request a mitigation expert? Defendant this issue preserved motion, his post-trial argued and it at the hearing on the There post-trial motion. is no reason he could not have made this on argument argument direct does appeal. not fact depend on the that defendant now has attached his to what he be better petition mitigating considers to evidence. That his all he argument along: needed have funds to someone conduct an adequate investigation and he would be able on his own to muster evidence this This was a routine quality. argument abuse of discretion that should have been pre on as in Burt v. appeal, sented direct it was and People (1991). Lear, 143 Ill. 2d 138 Defendant has waived this

347 properly argument, dismissed trial post-convictionpetition. count Investigate Counsel: Failure to Ineffective Assistance of Mitigating Evidence and Present argues the ineffec next received Defendant attorney failed to his of counsel when tive assistance mitigating investigation potential adequate conduct capital present at his failed to this evidence evidence and sentencing hearing. depends upon evidence this claim As original record, it is not waived outside the trial People appeal. v. failure to it on direct See counsel’s raise (1995). Orange, 138, 168 Ill. 2d prevail at counsel on a claim of ineffectiveness of To attorney’s sentencing, a defendant must show that performance objective fell standard of reason below an a rea that, errors, there is ableness and absent counsel’s probability trier of have sonable that the fact would mitigating aggravating that the concluded balance of penalty. People Hen did not warrant the death v. factors (1996). duty derson, 2d to 124, 171 Ill. Counsel has investigations potential sources of make reasonable mitigating sentencing present capital evidence (1998). hearing. People Towns, 491, investigation thorough made after a of the law When plausible options, strategic choices of facts relevant virtually present unchallengeable. what evidence are Strickland, 690, Towns, 514; 182 Ill. 2d at 466 U.S. at 695, L. 2d at at 2066. Choicesmade after Ed. S. Ct. complete investigation are to the less than reasonable judgments support professional extent that reasonable investigation. Strickland, 466 U.S. at the limitations 80 L. Ed. 2d at 104 S. Ct. at 2066.

Background begin by reviewing presented at the We the evidence hearing. sentencing presented The State no evidence aggravation. Defendant three witnesses in mit- presented igation. The first person testify was probation officer Buettner, Michael who prepared presentence investiga- tion report defendant. Buettner testified defen- dant was on born December 1969. Buettner also testi- fied family members, about defendant’s their giving ages and cities mother, of residence. Defendant lived with his who his room provided and board. Buettner testified that defendant attended school until the eighth grade and then out. Defendant dropped average received to below- education, average grades. For of his part defendant was enrolled in home study bound but program, Buettner did not what that know was.

Buettner testified him that defendant told that he Store,” had worked at Liquor “Bob’s but Buettner could not verify that such a existed. Defendant place also boxes, claimed to have worked a company selling cable but verify Buettner could not that. In the summer of 1986, defendant worked in a summer youth program.

Buettner learned that defendant epilepsy had verified phenobarbital that defendant took and Depa- kote. said years Defendant recent he experienced only seizures twice a while year on that medication. Buettner any history drug did discover of alcohol or abuse by defendant. Defendant told Buettner there history family. was no of mental illness in his Defendant criminal record, did not an adult had have one delin- time, quency years incident when he was old. At that charged defendant was with burglary placed two years’ probation. Defendant successfully completed probation. Prost, a

Cheryl psychological consultant for the 20th Circuit, Judicial testified that she had been employed years. for 19 Prost had a capacity degree bachelor’s degree and a psychology psychol- master’s clinical She also ogy. year had of doctoral work in completed psychology. de- court to evaluate ordered She was place St. Clair took at the The evaluation fendant. days County jail on that defendant’s was conducted and underway. gave jury de- Prost testified that she trial was Intelligence tests, a Scale fendant the Wechsler Adult eye reading test, to motor coordina- tests determine short analysis memory problems, a and clinical tion and visual questionnaire. testing that the conditions were

Prost testified good. trial, so the She had to work around defendant’s interrup- began early testing a.m., as there were as 6:15 guards, jail of noise in the from and there was lot tions very background. pay tried hard to attention Defendant going the noise. Prost to on and to shut out what was might have caused the test conditions believed reading on the test and defendant’s scores Wechsler they slightly to lower than otherwise would have test be back- been. Prost discussed defendant’s educational ground him and learned that he had been in learn- with ing disability classes. explained

Prost that the results the Wechsler test 75, IQ defendant’s verbal to be which is showed range of the borderline of mental retardation. middle performance IQ 79, is is still in the Defendant’s which range retardation, is close to borderline of mental but dull-average range. IQ full score Defendant’s scale range 76, of mental which is in the borderline range mental retardation is 60 mild retardation. dull mental is 70 to and 69. Borderline retardation average is 80 to 89. IQ score, on verbal

Prost elaborated defendant’s average explaining An on six is based subtests. anything any score on these tests would be problem Defen- a 7 indicate a serious area. below would information were as 3 on the dant’s scores follows: that one would subtest, which tests academicinformation pick class; up being from digit span, on the is which remembering series numbers forwards back- definitions; 4 on wards; vocabulary 6 on the arithmetic test; comprehension section; on similari- ties, objects which compares two and asks they how are the same.

Prost further testified about reading defendant’s dif- ficulties. She administered the Range Wide Achievement Test, and it showed level reading grade, Prost, fourth first According month. a fifth grade level reading normally necessary perform daily business. Defendant labored analysis over clinical questionnaire questions, but he seemed able to compre- given hend them if time to so. adequate do Defendant negative any tested visual or memory impairment dyslexia.

Prost testified that the clinical analysis questionnaire, which she defendant, administered to asks 148 true/false questions about what a like person types or what experiences person has. Defendant scored highly on five out of the six depression. scales for The tests showed that he anxiety felt and felt physically unwell at times. Prost reiterated that defendant was instructed to answer upon based how he felt questions before he was ar- rested. Prost testified that defendant’s answers on the analysis clinical questionnaire showed that he was not delusions, having hallucinations, strange experiences. or psychological report Frost’s was admitted into evidence. mother, Defendant’s Mitchell, Irene testified that de- old, fendant was 20 years youngest her six chil- dren. always Defendant minded her when he grow- ing and never had up any talked back. She had never father, with discipline problems defendant. Defendant’s Mitchell, Alton, Aber had at Olin worked Brass East but Irene family poor. stayed home to raise the deceased, children. Aber was now as all were of defen- dant’s grandparents. epilepsy. from suffered that defendant

Irene testified injury around when he was a head suffered Defendant Superman playing years his brother. with old and was five slipped, rail on the and he hit his head foot Defendant’s began stitches, hav- Defendant received of the bed. ing after the incident. seven months seizures ongoing, for has been treated and defendant seizures are initially many took Dilan- times. Defendant the seizures them suf- seizures, not control tin for the ficiently. but did switched medications were Defendant’s phenobarbital, “Depakene” and and these worked better. neighborhood in the that the children Irene testified flips, he them to do “trained loved defendant because Anthony, they just things that, love like acrobats and dog, very Poochie, all of them.” Defendant trained his appeared show, well, and on TV in which demon- dog flips together. he and his would do strated how juvenile Irene clarified that defendant’s conviction defendant and five other was for an incident which going through empty kids broke into house successfullycompleted probation and window.Defendant system. legal no other had encounters with Defendant did volunteer work with senior citizens reading, going St. Louis. He was to school there East good enough help of the senior and became out some crazy citizens were citizens. Irene testified that senior regularly about defendant. Defendant attended church the New Bethlehem church. learning

Irene defendant had difficul- testified that years. Defendant was ties and had home tutor two having seizures, him to and Irene did not want miss too already grades A tu- were bad. school because his much every day, which was tor came to defendant’s home Buettner referred. home bound instruction which during period, that, defendant missed Irene testified a lot of school because of seizures. got along

Irene further testified well siblings with his friends, had close some of during whom testified on his behalf the trial. Defendant recently confectionary had Bob’s, worked which ais variety year The before, store. defendant had worked Chrysler plant at the in St. Louis. Defendant was also taking police academy courses at a Louis; school in St. passed security defendant had a course to become a guard. closing argument,

In the State’s the assistant State’s Attorney argued mitigating that none of defendant’s evi- preclude penalty. dence was sufficient to the death pointed State out that defendant had had contacts with justice system, the criminal worked, had not was border- mentally mentally line retarded than retarded, rather suffering and was not from mental illness. acknowledged put

The State did not on ad- aggravating evidence, ditional but rather focused on the violent nature of the crime. The assistant State’s At- torney knife, noted that defendant armed himself with 18-year-old went into trailer the Lienekes’ and stabbed pursued 13-year-old David, and then Dawn into the bedroom and stabbed her seven as times she cowered telephone under the covers with the in her hand. He jury asked the consider terror that would have gone through minds, the victims’ and that defendant’s upon unprovoked attack them was and brutal. attorney began by reminding jurors

Defendant’s mitigating that if even one of them felt there were fac- imposition preclude tors sufficient to of the death penalty, spared the defendant’s life could be and that he imprison- be would sentenced a term of natural life jury ment. counsel Defense reminded the that either very 20-year- severe, sentence was and that at best the spending old defendant be would the rest of his life in prison. emphasized opportunity He that the State had not had evidence but aggravating additional present any. produced consider that asked the jury then

Defense counsel or borderline mildly mentally retarded defendant was argued further Defense counsel retarded. mentally family had a who years old and only defendant was him. loved that defendant’s out pointed

Defense counsel also system occurred justice criminal with the one contact significant. old and was years he was when talk defendant’s counsel went on to about Defense disorder, grown up poor, had seizure that defendant reading level. He only fourth-grade emphasized had evidence, and that the the cumulative nature this life imprisonment, to death was natural alternative not appropriate the death was penalty showed this case.

Analysis additional we consider Against backdrop, should mitigating evidence that defendant now contends contends that have Defendant first presented. been did not receive accurate and infor- jury comprehensive functioning. mation about his intellectual Defendant crit- icizes Frost’s Defen- report. trial counsel’s reliance on Gelbort, dant relies Dr. affidavit from Michael who Gelbort, a clinical is critical of Frost’s work this case. at the Menard correctional tested defendant psychologist, IQ that defendant’s verbal was center and determined IQ IQ his 75, and full scale performance skills math were 73. Gelbort determined that defendant’s reading spelling at a level and that his fourth-grade Gelbort character- third-grade level. skills were below learn- language-based ized a severe having defendant as ing cogni- concluded that defendant’s disability. Gelbort that, although tive abilities were limited mentally IQ was borderline scores showed that retarded, his inability read and his slowed information- processing him speed left functioning more like someone mildly in the to mild/moderately impaired range. We need not determine whether counsel’s perfor- mance was objectively under unreasonable prong first of the Strickland test, because defendant clearly cannot meet the second prong. The jury was informed defendant’s borderline retardation and his severe dif- ficulties learning with and reading and did not find that factors mitigated those against imposition of the death penalty. There simply is no probability that, reasonable had the jury known that IQ defendant’s score might have lower, been three points actually he read below the third-grade level rather than at the fourth-grade level, and that a psychologist believed combina- tion of his reading IQ and difficulties low left him functioning more the mildly impaired it would range, have reached a different conclusion.

Defendant argues next that counsel minimized his seizure disorder to the point insignificance and should have introduced more evidence on how it affected his day-to-day jury life. The learned that defendant had been from suffering epilepsy since he a young child, he Dilantin, took initially and then switched Depakote phenobarbital and when that was ineffective. Even with the Depakote phenobarbital, and still suf- fering year. seizures twice a Defendant had been treated many times seizures, for his him they caused to miss so much he school that had to a home get tutor. We do agree not that defense counsel’s evidence minimized defendant’s seizures to the point insignificance.

Defendant claims that counsel should have introduced sisters, from testimony who could have testi- like, fied about what defendant’s seizures were how had to hospitalized many times, be for them and how he missed school because of them. believe We this evidence is no reasonable and there been cumulative have would probability testimony matter on this that additional jury that defendant’s to conclude caused the have would preclude mitigating epilepsy sufficient factor was a penalty. death counsel should that defense also claims

Defendant found in Gelbort’s as that evidence such have introduced go report his had to without sometimes that defendant family not epilepsy could when the a child medication as points stated out that O’Donnell afford it. Defendant epileptic withholding report medication his anxiety apprehension. patient As there can cause his medication was without no that defendant evidence murders, do believe de- time of the we at or near the probability that a reasonable fendant has shown there is jury result based would have reached different this evidence. contends that defense counsel was

Defendant next failing that, evidence because ineffective for introduce learning illnesses, his defendant was disabilities throughout youth. According to defen- victimized “continually degraded, hu- brief, was dant’s defendant subjected bullies, in and miliated, and to the violence of argument on the is based out of Defendant’s school.” hearsay Nicholson, friend, Eric statements of defendant’s by mitigation prepared report in a are contained which Jeffrey According report, to Eno’s Eno. social worker laughed by his him told that defendant Nicholson picked peers Nicholson other students. and was put a choke an incident in which another student recalled also that defendant’s hold on defendant. Nicholson stated viciously second-grade de- Davis, ridiculed teacher, Ms. inability up grade An- level. read to fendant for his to Lumas, Eno that other friend, Carlos told other childhood neighborhood picked and on defendant asked kids in the spell Eno that Defendant told to the word “tree.” him target of who gangs up would beat him try and him, to recruit but that he successfully resisted ef- their forts.

On this issue we do not believe that defendant can meet of the Strickland test. Defendant prong first has not shown that counsel’s decision not to evi present dence of defendant’s turbulent childhood fell an below objective of standard reasonableness. As we noted People Sanchez, (1996), evidence of a violent and abusive childhood is inherently mitigat Here, ing. appears that defense counsel’s strategy was portray defendant pleasant as a person who was well- liked, got who along with other children in the neighbor taught hood and tricks, them to do acrobatic who had friends, close and who volunteered his time to oth help It ers. was not an objectively strategy unreasonable defense emphasize counsel this evidence rather than portray defendant as an outcast and a loner who was picked on and beaten up. Defendant has not shown that attorney’s performance regard fell below objective standard of reasonableness.

Finally, defendant claims that the jury never received information about history depression of “other possible indicators of neurological/organic brain Defendant impairment.” points out that observed Gelbort that defendant’s mood was consistent with reactive type depression, that, defendant was diagnosed with childhood depression. Defendant also argues several factors indicated that he had a neurological impairment, birth, including complicated loss consciousness after a injury, head another incident trauma, head possible blunt lead intoxication, seizures, learning disability.

Again, cannot meet prong the second the Strickland test. Defendant’s claim that the jury no depression received information his about is untrue. that tests showed that defendant’s testified Prost depression scales, and highly five out of six on scored anxiety. showed The evidence also from he suffered that neurological impairment. It suffered from that defendant epilepsy suffered from that defendant injury, established disability, learning following he had a a head reading, difficulty IQ was in the that his he had jury range retardation. for mental borderline mitigating sufficiently rejected factors as these penalty, preclude not defendant has the death probability evi- that additional a reasonable established changed result. have these matters would dence on carefully of all the evidence have considered We present- argues not ineffective for counsel was sentencing hearing. mitigation capital ing De- at his prongs of the Strickland test fendant meet both cannot Accordingly, any made a he has not of this evidence. with right showing ef- to the denial of the substantial properly counsel, trial court and the fective assistance petition an count of the without eviden- dismissed hearing. tiary Representation

Adequacy of Post-Conviction Finally, this cause to al defendant asks us to remand petition. According attorneys replead low different petition’s shortcomings are such that defendant, 651(c) Supreme comply Rule with either Court does (134 651(c)), right level to a reasonable 2d R. or the Ill. (1992)). (see People Flores, 2d 264 assistance attorneys original peti that his filed Defendant notes 7, 1993, but asked for extension tion on December discovery. investigation complete additional time to years, the at the circuit court allowed the next Over 21k They torneys filed an amended extensions. several more May petition claims, three new 16, 1996, that raised mitigation report of worker Jef social and attached the largely petition frey However,the amended Eno. same as the original petition, and the three new claims barely covered more than two pages of the petition. De- (cid:127) argues fendant that it is apparent attorneys now that his did for nothing years mitigation but wait for a 21h report, and then to failed incorporate adequately that report into the claims.

Defendant acknowledges there is no sixth right amendment to the effective assistance of counsel state post-conviction proceedings. right Defendant’s to counsel post-conviction proceedings is statutory, and that right right is the to a reasonable level of assistance. Flores, Here, 2d at 276. attorneys clearly provided a reasonable level of They assistance. filed a lengthy post-conviction petition raising 17 new of claims deprivations rights. constitutional peti tion was supported by exhibits. We do not believe that their representation was unreasonable merely because only additional they evidence came with in up 21h years awas mitigation report.

Defendant contends that his attorneys did not meet 651(c). their obligations under Rule The State counters 651(c) that Rule applies only to defendants who file pro se petitions and does apply original when petition 651(c) by is filed an attorney. Here, the provision Rule that defendant claims was not complied with one requiring petitioner’s shaped to ap claims be into propriate legal form. The clause refers to the one counsel to affirm requiring that he “has made se any to the pro amendments filed petitions that are necessary adequate presentation petitioner’s 651(c). contentions.” 134 Ill. 2d R. As defendant did not se pro file a his petition, attorneys could not have violated Moreover, that provision. we find that petitioner’s claims are in legal form. appropriate matter,

As a final we note argues that defendant counsel’s deficiencies particularly him prejudiced with argu- appellate respect second, third, and fourth pleading have would evidence or No additional ments. helped arguments. As the second defendant on these argument, appellate have been conclu- if it could even only person Douglas sively who was the established that physical police could evidence told where the items inevitably spoken police have found, the would be Regarding Douglas the third and found that evidence. light argument argument, of our is irrelevant holding any of defendant’s error the admission fourth Defendant waived the was harmless. confession argument appeal. failing We to raise it on direct matter for to remand this decline defendant’s invitation post-convictionpetition. repleading of the

CONCLUSION by post-conviction petition, supported Defendant’s accompanying record, trial does not exhibits and the the showing constitu- that defendant’s make substantial Accordingly, rights the court did not were tional violated. evidentiary dismissing petition err in the without hearing. judgment of court of Clair The the circuit St. County of this court is directed to is affirmed. The clerk setting Wednesday,May the 24, 2000, as an order enter date on entered in the circuit the sentence of death which imposed. shall be executed court is to be Defendant (725 (West provided ILCS the manner law 5/119—5 1996)). copy send certified The clerk of this court shall to the Director Correc- mandate this case Center, and the tions, of Tamms Correctional the warden where defendant now warden of the institution confined.

Judgment affirmed. concurring: specially MILLER, JUSTICE opinion. separately join majority to re- I I write dissenting opinion spond points by the to several raised in this case.

Notably, only dissent musters a brief defense People Brandon, (1994), 162 Ill. 2d 450 and its prog eny, 21(a) interpretation and their of section of the 104— (Ill. Code of Criminal Procedure of 1963 Rev. Stat. 21(a)). ch. par. dissent offers no new analy sis of the question and simply perpetuates erroneous the Brandon line of premise by equating cases statutory right found in section with 104 — distinct constitutional right unfit, not to be tried while as embodied in the Too, due process clause. the dissent takes issue with what it are insists inconsistencies in the views of the justices disagreed who with the Brandon rule and who questioned court’s efforts transmute a statutory into right a constitutional one. What the dis sent’s lengthy mention, discussion fails to but is evident from a cursory reading cases, even of the earlier is that majority opinions changed themselves evolved and focus, as the court considered different of the aspects Brandon rule in problems posed by its of the application different procedural contexts. The dissents those deci sions appropriately addressed the factual specific settings in which the issue then happened to arise.

In Brandon rule, support the dissent relies pri- marily on the doctrine of stare decisis as grounds leaving that line of authority Our departure undisturbed. from stare decisis finds ample justification here, however. The earlier cases attest to the continuing problems the Brandon rule produced as the labored provide to statutory right the with constitutional foundation. Considerations of stare decisis weigh should little these circumstances, where a misguided of a interpretation procedural statute threatened a permanent become and curious of feature our constitutional law. Relevant here by are concerns expressed Court Supreme Payne Tennessee, 808, 720, 501 U.S. Ed. 115 L. 2d (1991), S. Ct. when it overruled its four- part Maryland, year-old 496, 96 482 U.S. in Booth v. decision (1987), which had barred Ct. 2529 440, Ed. 2d 107 S. L. sentencing capital impact evidence at victim the use of normally importance hearings. noted The Court system justice by played also but in our stare decisis prece- recognized mean that a does not that the doctrine law: forever frozen must remain dent usually policy, wise because “Adhering precedent ‘is applicable important is in most matters it more right.’ [Citation.] be than it be settled rule of law settled or Nevertheless, unworkable governing decisions are when reasoned, felt badly never constrained ‘this Court has are Stare decisis is not precedent.’ [Citation.] to follow command; rather, policy principle it ‘is a inexorable the latest deci- formula of adherence to not a mechanical particularly This is true constitutional [Citation.] sion.’ cases, through legislative because in such cases ‘correction impossible.’ [Citation.] is Considerations practically action acme in cases involv- in favor of stare decisis are at their rights, and contract where reliance interests ing property [citations]; in cases opposite true such are involved evidentiary present involving procedural and as the one 827-28, L. at 115 Ed. 2d at Payne, rules.” 501 U.S.

S. Ct. 2609-10. Payne instructs, not of stare decisis is the doctrine As permanently an incorrect rule enshrine intended isolating and reconsideration. law, forever from review judicial pro important in decisis is an factor “Stare pro forget cess, that it is not the whole but we must (1956). Matsoukas, cess.” Nudd v. later the court in Brandon and rule first announced variety mistakenly applied confused in a of circumstances statutory right right. too It is not with a constitutional surpris interpretation. The that erroneous late to correct ing thing the court now decides in all of this is not that progeny, that those cases Brandon and its but to overrule managed they long as did. to survive as 362 join

JUSTICES BILANDIC and HEIPLE in this special concurrence. dissenting: FREEMAN,

JUSTICE respectfully I from dissent the court’s decision to progeny. overrule Brandon and its today, Prior to our case law had as been settled remedy what would be afforded ato defendant who was (Ill. entitled, under section 1989, Rev. Stat. 104— par. 21(a)), hearing, 38, ch. to a fitness but who did Specifically, not receive one. that case law dictated that the failure to hold the necessitated reversal of the defendant’s convictions and remandment further proceedings, unless it could be established that defen impairment dant did not suffer mental as a result of his ingestion People Neal, medication. v. 179 (1997); (1997) People Burgess, 2d Ill. v. 176 Ill. 2d 289 (1994)). (modifying People Brandon, v. 162 Ill. 2d applied appeal This rule to cases on direct as well as to Neal, those collateral review. 2d 179 Ill. at 549 (1996)). (modifyingPeople Nitz, v. Indeed, parties appeal the regarding in this have framed their contentions light principles

this issue in of the set forth in these cases. Neither has, defendant nor the State in this appeal, requested that this court revisit the Brandon/ Burgess only rationale. The State asks that this court retroactivity light consider the retroactivity above rule in

test announced the United States Supreme Teague Lane, Court in v. 489 U.S. 103 L. (1989), adopted by Ed. 2d 109 S. Ct. this (1990). People Flowers, 138 Ill. 2d 218 court, however, states that it “need not address this is [because] psy sue, however, the dismissal of defendant’s chotropic proper medication claims was for other rea sons.” 189 Ill. 2d at 325. The “other reasons” alluded to eventually in this sentence reveal themselves to be noth ing disregard other than the court’s of the doctrine of today’s expressed views Contrary stare decisis. that war- this case reason exists legitimate no opinion, therefore, I, believe stare decisis. departure from rants its estab- to adhere to court should continue area. this precedent lished

I Latin from the is derived The term stare decisis moevre, which translates et non phrase quieta stare decisis “ and not that have been decided by ‘to stand matters ” Wallace, and Stare Decisis J. tranquil.’ disturb what Activism, Passiv- Court: The Collision Rehnquist the of 189 187, 42 Buff. L. Rev. Politics in Casey, ism and Ab- (1994), Foreign Phrases and Dictionary quoting 1983). (K. trans., ed. This 187 Guinach 3d breviations having engrafted English jurisprudence, principle was Blackstone, by William who acknowl- recognized been Sir “ followed, un- and rules must be edged ‘precedents ” Stein, flatly unjust.’ Hobgoblin absurd or J. less Law, Consistency in the Identifying Doctrine: “Foolish” (1998) 1 1017, L. 1019 W. quoting 29 Tex. Tech. Rev. Blackstone, jurispru- In *70. American Commentaries “ dence, that “in judgment decisis reflects a ‘policy stare important applicable most matters it is more ’ ” right.” it rule of law be settled than that be settled 20, Khan, 3, 199, 522 U.S. 139 L. Ed. 2d State Oil Co. v. (1997), 275, Agostini 118 v. 212-13, quoting S. Ct. 284 422, Felton, 235, 391, Ed. 117 203, 521 138 L. 2d S. U.S. & 1997, (1997), Burnet v. Coronado Oil quoting Ct. 2016 815, 823, 52 393, 406, 285 76 Ed. S. Ct. Co., U.S. L. Gas (1932) (Brandéis, J., joined by 443, dissenting, 447 JJ.). United States Cardozo, Supreme and As the Roberts doctrine observed, prefers judiciary Court has evenhanded, and predictable, it “promotes because fosters reli- development legal principles, consistent the actual decisions, on and contributes to judicial ance judicial perceived process.” Payne integrity 364

Tennessee, 827, 808, 115 720, 737, U.S. L. Ed. 2d (1991). 2597, S. Ct. court, too,

This has voiced similar Long sentiments. Burckhartt, Frail v. ago in the court observed that rule of stare decisis largely

“is founded on expediency considerations of sound principles public policy, being indispensable justice, the due especially by administration of a court of resort, a question last deliberately once examined and decided should be considered as settled closed to fur argument, ther and the courts are slow to interfere with principle may announced and it up decision be though they held even would decide otherwise were the Burckhartt, new one.” Prall v. question 299 Ill. (1921). In light of the foregoing, this court has recognized that doctrine, inviolable, while not demands it be overturned cause.” Heim “only showing good gaertner v. Benjamin Co., Electric Manufacturing (1955). my view, In my colleagues have not cause, shown let any cause, alone good for their actions today.

Purporting appreciate to noted considerations above, the court states “normally” that it “would *** continue to to adhere established even if precedent, certain members of this court disagreed with it.” 189 Ill. Nevertheless, 2d at 338. the court that explains “[i]n this however, case, we deem it appropriate depart to from *** stare decisis [because] [n]o reasonable observer of this court’s jurisprudence argue could the law in this area been in developing has principled intel ligible fashion.” 189 Ill. 2d at 338. I take this statement People Burgess, to refer to this court’s in v. decision, 176 Ill. (1977), change line, 2d 289 to a bright from automatic rule of reversal to a I case-specific approach. cannot fathom in join how Justice Miller can opinion change unprincipled characterizes this as and unintel Burgess. ligible because Justice Miller himself authored

365 as “er- characterizes today the court The case law is, None of the reality, in neither. and confused” ratic confused; rather, be both in appear this case parties argu- cogent have presented and the State today. until up in the as existed grounded ments law court have Likewise, appellate districts of our the various any do not exhibit in this area that opinions rendered The only people to this issue. degree respect of chaos with members case law are those by are “confused” this who have its con- not like it and resisted of this court who do as the law of this state. application sistent decisis is applied I that stare Although acknowledge (see Patterson v. in cases rigidly less constitutional Union, 164, 172-73, L. Ed. 491 U.S. 105 McLean Credit 2363, (1989)), the United 132, 148, 2d Ct. S. the doctrine is so Court has noted that Supreme States cases, that, the Court even constitutional persuasive be departure precedent supported has from required v. by Rumsey, Arizona “special justification.” some 172, 2305, 203, 212, 164, Ed. 104 S. U.S. L. Ct. (1984). I law in must out that our case point prior not or problem- this area did an “unworkable” produce Payne atic of the law defendants. See application 720, Tennessee, 808, 842-43, 115 L. Ed. 2d 746- 501 U.S. (1991) (Sauter, J., 111 S. 2617-18 concur- Ct. J.) joined by Kennedy, (recognizing constitu- ring, not reason to past tional error decisions alone is decisis, “special justifica- override stare but rather needs tion”). court decisions that My appellate review of Burgess reveals that the lower have cited to Brandon and any the case- difficulty applying courts have had specific Burgess established utilized approach it. court in our decisions which postdate case law has evolved In order to understand how our announced, a complete since the time Brandon was drug ju- history of the of this court’s review 366

risprudence is necessary. This review will illustrate that nothing changed has from the time that Brandon modified in Burgess, court’s decision for except fact one member of the court that decided Brandon has retired. However, the circumstances warrant changes the law do not include changes personnel the court. As Ryan Justice once eloquently stated, “[i]f the law to change were with each change court, makeup then the concept that ours ais government of law and not of men nothing would be Lewis, v. more than a pious People 129, cliche.” 88 Ill. 2d (1981) J., 167 (Ryan, concurring).

A One of the most basic tenets of justice our criminal system is recognition the conviction of an incompetent defendant violates that defendant’s funda Robinson, Pate v. right mental to due process. 383 U.S. 375, 378, 815, 818, 836, (1966); L. Ed. 2d 86 S. Ct. Barkan, People v. 261, 45 Ill. v. (1970); 2d People (1957) (and Burson, Ill. 2d cases cited there in). The right notion, constitutional from derives recognized law, at common no person should be com Gavrilovich, People pelled to stand trial while insane. (1914). 265 Ill. 11 As has recognized, this court the need at inquiry into fitness the time of trial stems from concerns that an incompetent may be disabled making from a rational and may incapable defense be “of co-operating any with his counsel to the end that avail Burson, able may defenses be at interposed.” Moreover, 369. the Code of Criminal Procedure the Illinois Assembly General has expressly trial, sentence, prohibited adjudication, or execution persons charged with criminal offense while insane. (West 1996). et statute, seq. See 725 ILCS 5/104 —10 not, however, to, abrogate does and was not intended Burson, common law rule. 11 Ill. 2d 368. provides that the is Procedure of Criminal

The Code plead, trial, or to to fitness to stand sue a defendant’s of may by defense, the State or be raised be sentenced plea any appropriate a entered time before is at court during, ILCS before, or after trial. 725 or 5/104— 1996). (West 28, 1979, our criminal Prior to December provided defen that, a doubt of a bona code when fide a de raised, the court shall order fitness has been dant’s proceeding further. 725 the issue before termination of 11(a) (West 1996). strictly This court ILCS 5/104 — statutory provisions mean that when to construed these raise a bona court aware of facts that ever the becomes duty-bound sanity, to to the court becomes doubt as fide by sanity hearing provided law.” held as “cause a be at Burson, Ill. 2d 370. hearing once a bona The failure to hold a fitness fide long competence has has been as to been raised

doubt Burson, See 11 Ill. 2d at 370. deemed reversible error. inquiry requisite The regarded has been failure to make the right fair as so fundamental to the to a criminal appeal despite trial as an issue can be raised on properly preserve it. This court’s failure to respect. in Burson in this The decision is illustrative there a criminal conviction because the reversed sanity hearing that was trial court did not hold the required the criminal code. court did so even though the point; gen- present argue

“did or this and that the not question is raised reserved eral rule is that where a or court, where, though raised in the lower in the trial or court, it it will not be urged argued appeal, is not or and will be deemed have been waived. considered However, juris- is a and not of rule administration operate deprive or an ac- power, diction and it will not process. of due ‘The court rights cused his constitutional involving may, grace, deprivation as matter of a case liberty, upon the rec- appearing life or take notice of errors means of deprived ord which the accused substantial enjoying impartial trial, fair and although no exceptions ” preserved question imperfectly were or the presented.’ Burson, 370-71, quoting Appeal Am. Jur. & (1937).5 248, § Error at 33 In view of the foregoing, it is clear this court has long acknowledged the deprivation sanity was, the statute required by essence, a viola Riggins v. Ne tion of constitutional due process. See also vada, 127, 140, 479, 504 U.S. L. Ed. 2d 112 S. (1992) (not Ct. J., 1817-18 (Kenne'dy, concurring) that a ing defendant’s waiver of the right to be tried while not competent scrutiny would withstand the under Due Process Clause and on casts doubt his or her exercise or waiver all subsequent rights of privileges through trial). Moreover, the whole course the of this court has cognizable held that such a claim is on collateral review. Smith, People v. (1969) 82, See 44 2d Ill. 85 (noting successful petition allege must which facts “demonstrate had”). that such a hearing should have been On 28, 1979, December the General Assembly amended of the Code Criminal Procedure to address the issue of Such drugs. drugs, also known as antipsychotic first drugs, were introduced the 1950s and have gained since wide in the acceptance psychiatric as community treatment for psychotic thought disorders. Riggins, 141, See 504 U.S. at 118 L. Ed. 2d at 112 S. J., Ct. at 1818 (Kennedy, concurring). Although these drugs worked to restore thought by normal processes clearing delusions, hallucinations they also had effects, unwanted side namely, slowed physical mental These functioning. enough side effects are severe procedural

5The court Burson did evaluate the default Nevertheless, plain recogni terms our error rule. the court’s magnitude comports tion that error was of constitutional with rule, i.e., prong plain second error the error affected a right. 615(a); People Vargas, substantial 2d R. See Ill. v. (1996). Ill. Supreme States member of United have one

to caused drugs by ingestion acknowledge that Court to to that defendant prejudice defendant can cause criminal unwilling or assist rendering him or her unable by Ed. 141-42, 118 L. 2d at Riggins, counsel. U.S. See J., (Kennedy, concurring). 493-94, 112 S. Ct. at 1818-19 effect the adverse Assembly recognized General Our of an drugs competency could have these types provide amended the criminal code accused and drugs receiving psychotropic or “[a] who is defendant entitled to a under medical direction is other medications under medica- hearing on issue of his fitness while (West 1992). 21(a) 725 ILCS tion.” 5/104— decision that addressed reported The first Illinois Tilson, 108 Ill. 3d 973 People App. amendment was (1982). There, Tilson contended that his the circuit court must reversed because conviction be failed to hold the section provided taking psy the fact that defendant despite at the time of his drug under medical direction chotropic not challenge, court Tilson’s appellate rejected trial. The did not ing that the word “entitled” necessitate Further, did not obligation hearing. to hold the an intent being view the statute as indicative of right judge to “remove trial legislature he is of sufficient possessed exercise all discretion when fit to the defendant is particular information assure that Ill. Tilson, and to be sentenced.” 108 App. to stand trial the reason, at For the court concluded that 3d 978. this in to hold failing its discretion circuit court did not abuse the convic hearing, the fitness sua and affirmed sponte, in in several other holding tion. The Tilson was followed in rule decisions, culminating general court the appellate ingestion a medication psychotropic that in was, effect, one whether determining but factor See, competence exists. bona doubt of a defendant’s fide 370

e.g., v. People Lopez, Ill. 83, (1991); 216 3d App. 87-88 (1986). People Balfour, v. 148 215, Ill. 3d App. 226 Such the was state of Illinois’ decisional law on this issue when defendant Tyrone directly Brandon appealed degree first murder conviction and death sentence to Brandon, (1994). People v. this court. 162 Ill. 2d In that presented, time, this court was appeal, the first the challenge with to trial court’s failure to fit hold a 21(a). hearing ness under section In contrast to the 104— subject, court decisions the appellate court 21(a) concluded that section recognition “evinces a 104— by the General Assembly that is psychotropic medication an important signal that a may compe not be Brandon, to tent stand trial.” 162 Ill. 2d at 457. The further concluded that Brandon’s attorney trial ineffective for failing point to out to the trial court that Brandon was entitled to the hearing under section 21(a) and resulting that was “mani prejudice 104— Brandon, fest.” In holding, 2d 459. so four rejected notion, members of this court explicitly first Tilson, developed the fitness hearing described section was a matter of discretion with 104— Brandon, v. trial citing Pate 459, court. 162 Ill. 2d at Robinson, 386, 375, 815, 383 U.S. Ed. L. 86 S. (1966). Ct. The court the word interpreted just “entitled” mean that —if are brought facts to the court’s attention indicate taking that defendant direction, drugs under medical then court does not have the discretion hold hearing. Brandon, required Ill. 2d at 459. Miller, joined by Heiple,

Justice Justices Bilandic and Brandon. Although dissenting justices dissented acknowledged “true defendant was 21(a)],” entitled [section under they whether defendant had disputed established Washington, Strickland requisite under prejudice (1984). S. Ct. 668, 80 L. Ed. 2d U.S. (Miller, J., dissenting, Ill. at 461-63 Brandon, 162 J.).6 According to the Bilandic, C.J., and Heiple, joined by prejudice not establish dissent, Brandon could under section hearing a request for counsel’s failure to 21(a) that he not show defendant could because 104— the view that words, In took unfit. other dissent ordered, would have resulted had hearing, it been Brandon, 162 Ill. for trial. finding a that Brandon fit Bilandic, (Miller, J., dissenting, joined by 2d at 461-63 J.). C.J., and Heiple, a departure, court’s decision Brandon marked

This previous reported in several critical from respects, of a trial concerning effect appellate decisions to hearing sec- court’s to hold a fitness pursuant failure 21(a). First, all members of the court tion seven taking psy- the notion that a defendant who is embraced a direction is entitled to drugs under medical chotropic proposition. for even the dissent conceded that hearing, Second, the court deviated from the majority appel- a of a the decision to hold holding late court’s rests within the discre- to the statute pursuant of tion the trial court. today the court holds that word

Inexplicably, average people does not mean what most “entitle” mean, namely, to “to furnish with intelligence believe it great lengths right.” Indeed, goes the court mean “entitle” does not explain that word when certain facts court must make a “further inquiry” 189 Ill. 2d at are to the court’s attention. See brought statutory I construction which 331. know of no rule language statute. The reading such supports is clear: a defendant who exactingly section 104— Miller, Bilandic, Heiple apparently now believe 6Justices See differently challenge definition of the “entitle.” word Ill. 331. 2d at taking psychotropic drugs under medical direction time of right trial has the have into the is- inquiry sue of statute, fitness. Under this once a is be- defendant ing treated psychotropic drugs, with he or she need not bona raise a as doubt to fitness in order to receive a fide hearing. is hearing automatic. The statute does not that trial say judge the has discretion to hold such a hearing a taking when defendant psychotropic drugs under medical direction. Nor does the statute limit such hearings only who “timely” those In request them. fact, the of Code Criminal Procedure expressly allows a post-trial inquiry into See fitness. 725 ILCS 5/104— (West 11(a) 1996). 21(a) Thus, section was not 104 — couched in terms which would limit circuit the court’s ability to hold such a as hearing, today’s opinion sug- If gests. drugs administered, psychotropic being were a fitness hearing was to be held. The Brandon did in court 21(a). erroneously not construe section 104— After Brandon announced, this court ad next Gevas, v. People dressed section 166 Ill. 2d 104— (1995). 461 Defendant Gevas appealed his conviction death court, sentence to this arguing, among other things, the trial court erred not ordering fitness hearing after that defendant learning taking psycho under tropic drugs medical direction. de Relying the Brandon, cision the court trial concluded the court’s failure to the hearing hold necessitated reversal that, of the convictions and trial. new The court held 21(a), by enacting Assembly section the General the of “equated had medica administering a bona tion to a defendant with doubt as to fitness to fide Gevas, stand trial.” 166 Ill. 469. so holding, 2d at In legislature’s court noted that concern in area this only drugs was substantial not such signal because trial, be may a defendant to stand but competent drugs types because these can also “have severe side

373 criminal during can affect defendant effects which In Gevas, Ill. 470. support 2d at proceedings.” statement, Kennedy’s cited concurrence Justice 2d 127, 144, L. Ed. Nevada, U.S. Riggins (1992), 1810, in which S. Ct. antipsychotic drugs side effects “[t]he out pointed *** rendering relation attorney-client hamper can take in his or willing part the defendant less able lead defendant’s loss ‘can also to the [and] defense for self- undermining desire self-determination necessary engage which is preservation ” Finally, for his trial.’ preparation in his own defense a ret remanding court concluded that the matter for difficult. inherently would be rospective Therefore, was a trial. Ge only proper remedy new vas, at 471. Miller, Bilandic again, joined by

Once Justice Justices dissented, the defense Heiple, and this time on basis that failure inform trial in the judge counsel’s the sooner of defendant’s proceedings ingestion psychotropic dis drugs was matter of trial to the strategy. According sent, in the in judge the trial case “was warranted in concluding that the defendant fit and justified was refusing untimely hearing.” counsel’s Ge request (Miller, vas, joined 166 Ill. 2d Bi J., dissenting, by at 473 J.). landic, C.J., Moreover, Heiple, dissenting jus the following: tices stated the “If, insists, majority ap the as section is to be case,

plied in then course be to proper this the would evidentiary hearing remand for an to determine whether drugs receiving the of the defendant was still the time Gevas, (Miller, J., hearing.” at 474 dissent plea Ill. 2d J.). C.J., joined Bilandic, ing, by Heiple, dissenting justices It was for these reasons that the grant that the court’s defendant Ge- believed decision trial vas a new was erroneous. the presented psychotropic

This court next with I, Kinkead drug issue 168 Ill. 2d another capital case. Defendant claimed Kinkead that he was not af forded a fitness the hearing despite fact that was tak ing psychotropic drugs at the time of the proceedings against him. The court began analysis by its reaffirming the Brandon Gevas. established both principles Moreover, rejected the court again any notion that the ingestion was, effect, medication but one factor in the trial court’s bona doubt analysis. fide I, Kinkead 168 Ill. 2d at The 409. court noted specifically that the appellate by court decisions relied upon State to Brandon. were all decided court prior further rejected the State’s contention the trial court’s “observations of defendant’s during demeanor proceedings [were] of the issue in dispositive fitness I, Kinkead case at Ill. 2d In bar.” at 409-10. reaching conclusion, the court specifically stated: intended, legislature through “Webelieve that the plain language statute, to remove the determination of a the subjectivity personal fitness from place question observation and in the formal context of hearing. Psychotropic potent medications are drugs and their effect the mind of an and behavior ac may fully understood, easily cused not be determined or particularly by personnel. nonmedical A fitness may provides the vehicle which the ascertain drugs influencing subjec whether the are the defendant’s pursuit tive regarding decision of available defenses.” I, 168 Ill. 2d at 410. Kinkead Nevertheless, the court noted that Kinkead’s situation was slightly different from that of the defendants Brandon and Gevas because appeal record on was in court could not whether adequate “determine —the of the Thorazine proximate enough administration was in time to guilty plea sentencing trig to defendant’s ger right hearing the to a full fitness to section pursuant 21(a).” I, Kinkead The 168 Ill. 2d at 414. matter 104 — directions the circuit therefore remanded with into the factual circumstances inquiry conduct an court of psychotropic asserted use surrounding 2d at 417. Kinkead 168 Ill. medication. Bilandic and Miller, by Justices

Again, joined Justice in their expressed to the view Heiple, Contrary dissented. with dissent, dissenting justices the now took issue Gevas inquiry. Compare the matter for the factual remanding (Miller, J., dissenting, joined 2d Kinkead 168 Ill. at 418 J.), Gevas, 166 Ill. 2d Bilandic, C.J., and with by Heiple, Bilandic, C.J., and (Miller, J, joined dissenting, by at 474 J.). Moreover, dissenting justices disagreed Heiple, through legislature, that the section with conclusion 21(a), essentially the use of equated drugs presence concerning of a bona doubt with fide dissent, a According may fitness. be hearing provision, entitled a fitness under but in “a timely such a the statute defendant must invoke I, (Miller, J., manner.” Kinkead 168 Ill. 2d at 419 dissent J.). Bilandic, C.J., ing, joined by Heiple, yet The next an court addressed same issue case, Birdsall, 172 Ill. 2d 464 capital People other (1996). alia, contended, Defendant inter that he Birdsall process was denied due law and effective assistance of competency counsel not afforded the because hearing to which defendants are entitled section 104— 21(a) if are they medication under taking psychotropic medical at or trial or direction near the time of sentenc noted ing. long-established prin that under ciples process, may prosecuted due an accused not be if or he or she is unfit to stand trial. validly convicted Birdsall, Moreover, at 474-75. to secure this process statutory due Illinois and case law protection, court to if there require competency trial hold concerning bona doubt defendant’s mental fide understand the nature and purpose proceedings Citing and to in his or her defense. assist

376 Gevas decision, the court noted legislature the through indicated the section plain language of 104— 21(a) that it had the “equated administering of psycho bona tropic medication to a defendant awith doubt fide Birdsall, 172 Ill 2d at 475.7 as to to stand trial.” After a thorough law, review Illinois the court con cluded that Birdsall was entitled to relief based on the his right denial of to a fitness hearing, and new trial Birdsall, ordered. Ill. 2d Moreover, at 475-77. rejected the court the State’s explicit request the Brandon, Gevas, court holdings its “repudiate” and Kinkead I. In place of the automatic reversal rule enun Gevas, ciated in Brandon the urged and State this court totality to adopt the circumstances test which the court could assess whether psychotropic drugs had impaired defendant’s fitness to and understand assist The defense. court declined the request, State’s not ing that the State did not to in the point anything record on appeal any contained of a evidence medical nature the influence the respecting drugs may have had Birdsall, Birdsall. Ill. 2d at 477-79. Miller, again

Justice Justices with Bilandic Heiple more, joining, dissenting justices dissented. Once charged mistakenly court was equating statutory entitlement to a fitness found in hearing sec- 21(a) with a bona tion doubt of the defendant’s 104— fide dissent fitness. The also believed that court had procedures confused “defendant’s failure assert had, Assembly during 7The noted that the General 21(a). pendency appeal, of Birdsall’s amended section The 104 — that, grant provided amendment effective December ing hearing of a fitness based on the defendant’s treatment with drugs required is not unless the court finds there is a bona fitness. held doubt the defendant’s The court that the fide apply expressed Birdsall’s amendment did case and no opinion regarding the amendment’s effect on future cases after the Birdsall, effective at 475 n.1. date amendment. a denial process due with are secure designed believes (Miller, Ill. 2d Birdsall, 172 itself.” process of due J.). Ac Bilandic, C.J., joined by Heiple, J., dissenting, to a dissent, “grants to the section cording in cases to a fitness entitlement at all right implicated.” the constitutional is not which (Miller, J., joined Birdsall, dissenting, 2d at 482 Ill. J.). Bilandic, C.J., Heiple, dissenting justices “[rjather being a question maintained that than also analyzed in terms of the issue is process, properly due Birdsall, Ill. 2d ineffective assistance of counsel.” 172 C.J., and (Miller, J., joined Bilandic, dissenting, by 482 J.). In to a defendant prejudice, order establish Heiple, hearing have not that a fitness would only must show also if defendant must requested, been conducted but have demonstrate that the outcome of the would been favorable to him. Birdsall, which

Up until all of this court’s decisions in issue done so psychotropic drug had addressed the had trial. v. appeal People the context a direct In .from (1996), Nitz, 173 Ill. 2d 151 the court faced the same Defendant the context of collateral review. question sought Hearing Nitz relief under Post-Conviction the Act, death asserting that his murder convictions and of his federal and sentence were obtained violation he was rights. state constitutional Nitz contended that a infor entitled to new trial because the State withheld that it medica administering psychotropic mation tion to him course of his trial throughout the Nitz, to dis sentencing. According to the State’s failure deprived the information him of his constitutional close The right hearing. to a fitness process competency due or began analysis court its defendant’s contention right the due examining process nature and scope trial, competency in the context of an accused’s to stand to adequate that the failure to noting procedures observe 378

protect tried right be while unfit Nitz, the defendant of deprived process. due 173 2d at Ill. cases, then 156. court cited several decided before 21(a), the enactment section that held that if which, facts existed at time of defendant’s trial if bona court, to the trial presented would have raised doubt as to defendant’s sanity, the accused would fide had right have to have a hearing and such a claim Nitz, could be heard on collateral review. See 173 Ill. 2d People Smith, v. at 157 People (citing (1969), Ill. 2d McLain, v. Harris, (1967), Ill. 2d People (1983)). App. Recognizing the due process claim, implications of Nitz’s the court went on evalu ate it in light of Brandon and its progeny. Although noted procedures contained the Code of Criminal regarding Procedure purely were statu the court held tory, right inquiry established bona Code, through be doubt be it or fide through ingestion of psychotropic drugs, flows from guarantee the due process that an accused unfit who is Nitz, will not be Moreover, tried. 173 Ill. 2d at 160-61. the court rejected State’s contention that Nitz’s de meanor at issue, trial dispositive noting the court rejected had similar in previously arguments Brandon, Gevas, I. Kinkead The court also rejected the State’s invitation to overturn the “automatic Brandon and the cases reversal” rule enunciated Nitz, which followed it. Ill. 2d Noting at 163. that “automatic reversal” the always has been appropriate remedy requisite statutory where a was hearing not the court Nitz provided, concluded that was entitled Nitz, words, to a new 173 Ill. 2d at In other trial. 164. Nitz the court in held that failure hold the required the 21(a) hearing under section the same necessitated 104— of relief did the failure to a type hearing .as hold under 11(a). section 104— and Heiple, Justices Bilandic Miller, joined by

Justice ad continued to dissenting justices The dissented. again estab hearing to the right the that the here to notion 21(a) awith equated could not be in section lished 104— addition, the In dissent bona of fitness. doubt fide 21(a) right section provided that the believed 104— therefore, and, opposed as to constitutional statutory Hearing the Post-Conviction under cognizable Nitz, (Miller, J., dissenting, joined 2d at 165 Act. J.). Bilandic, C.J., and by Heiple, firmly established Nitz and the cases decided before at in those play due considerations were process to, but did not in which a defendant was entitled cases 21(a) at the time receive, hearing under section 104— “correcting” the of sentencing. guise trial or Under today deprecates the court precedent, “erroneous” For right example, constitutional to be fit when tried. to hold a section court insists that failure statute, merely stating is of a violation rights, do not confer constitutional “[statutes not a deprivation statutory right of a of a is allegation claim under Act.” 189 Ill. 2d at 329. The proper Nitz, reality, just the dissenters did ignores as fitness contained statutory provisions concerning the fundamen implicate our Code of Criminal Procedure right competent tal constitutional to be while tried. incapable understanding psy court seems these present, root, cases at chotropic drug question unfit If when tried. the answer whether defendants were question yes, is the conviction stand cannot while he is person because the “conviction of an accused Pate, U.S. legally process.” violates due incompetent at purpose 15 L. Ed. 2d 86 S. Ct. at 838. The post-conviction remedy provide mechanism “the persons question which could raise convicted of law” at their they process whether were denied due Dale, (1950). trials. People v. original Our Hearing Post-Conviction Act specifically was de signed vindicate those rights constitutional that were could not have been raised the at time of trial. In the psychotropic cases, drug the defendants are pre senting evidence, which if known trial, time of would have necessitated be into inquiry made the issue of cases; fitness. No in inquiry made these therefore, possibility drugs exists that were being administered have may rendered some unfit. As noted, an accused who is unfit to be tried and is never theless convicted has been denied due process. That four members of court fail to see the process due implica tions such cases is incredible.

Moreover, today the court mischaracterizes the facts Nitz. must be It that, case, remembered in that defen dant Nitz alleged his post-conviction petition that State from attorney withheld both defendant and his drugs nature of the that were administered Clearly, to defendant Nitz at the time of the trial. had those facts been known to either defense or the counsel trial judge, the court would have duty-bound been hold the Therefore, mandated the statute. post-conviction act means provided only by which de fendant could vindicate his in constitutional right People Smith, v. surrounding his quiry See competence. (1969) 44 Ill. 2d 82 (acknowledging .cognizability post-conviction of claim failure regarding the of a to hold a bona “Last J. hearing); Decker, doubt fide Chance” State Judicial Review in Criminal Cases—Illi Collateral Attack A Principled nois’ Remedies: Call For (1988) Jurisprudence, 38 DePaul L. Rev. (noting to stand trial or is of competency plea to enter magnitude cognizable constitutional is an issue Act). Hearing under the Illinois Post-Conviction Nitz announced, After court next addressed People Britz, Ill. 2d 163 section 104— challenge (1996), post-conviction which, Nitz, like argued, alla, inter Defendant Britz to a death sentence. pursuant to medical orders on “medication” that he was during proceedings. that, under Britz maintained his trial 21(a), held a fit court have the trial should section 104— citing analysis by hearing. began its ness The court proposition Brandon, I, Kinkead and Nitz the Gevas, drugs prescribed psychotropic to ac are when pursuant and no fitness hear cused to medical direction necessary ing or a remand is held, either a new trial is drugs required if adminis in order to the were establish trigger proceedings as tered the time of the so at application. 2d at The Britz, 174 Ill. 195-96. statute’s determined, however, that Britz did not come 21(a) purview within the of section because the 104— given psychotropic not in medications that he was were legislature only to address nature and that the intended drugs equivalent psychotropic statute. or their Britz, this conclu 174 Ill. 2d at 196-98. court reached legislature protect sion was concerned with because ing against interfering [the “capable with medications ability purpose of the to understand the nature against defense].” proceedings Britz, him or assist in his reasons, at For the court concluded 174 Ill. 2d 197. these had that Britz not been entitled to fitness ingested. Britz, he of the medications had basis therefore, affirmed the circuit court, Ill. 2d at 198. The post-conviction petition. of Britz’s court’s dismissal previous Nitz, one would have Given their dissent Heiple expected Miller, Bilandic, and have Justices only explaining judgment court, concurred in the of the they only they that Britz’s did so because believed 21(a) cognizable claim under the section statutory Hearing due its nature. Act Post-Conviction dissenting, joined (Miller,J., Nitz, 173 Ill. 2d at 165 See J.). Bilandic, C.J., Moreover, and Heiple, none of these justices registered any disagreement with premise i.e., the court’s opinion, that had the Britz drugs ingested (or been psychotropic equivalent) then a fitness hear- ing would have been required pursuant to Brandon its progeny. Notwithstanding the views expressed their dissents, each previous justices joined three fully in the court’s decision.

Section next came before the court 104 — Kidd, People (1996), Ill. a direct capital ap Defendant Kidd peal. contended was entitled to a fitness hearing under Brandon taking because he was Dilantin, the drugs Tegretol, and Elavil time of proceedings against him. Despite consistent dis senting view on the issue, drug Justice Miller authored the court’s decision. The court noted the record on appeal established that Kidd was only Dilantin receiving at the time relevant to the Kidd, Britz, proceedings. 175 Ill. 2d at Citing 17. the court concluded that Dilantin was not a psychotropic drug equivalent; therefore, or its Kidd “was entitled 21(a) to a hearing fitness under section [and] 104 — defense counsel could not have been ineffective for fail Kidd, ing to seek one pursuant provision.” to that Ill. 2d at 19.

Neither Justice nor Heiple Bilandic Justice filed a Britz, in Kidd. As in separate opinion the three original Brandon dissenters joined in the fully opinion, court’s without specifically registering their continued disagree- ment with the interpretation court’s of section 104— 21(a). these Surprisingly, justices joined three an anal- ysis whether concerning “other medications” 21(a) referred to section equivalent were 104— ,drugs given dissents, their these psychotropic previous — that, three if justices could have taken the even position Kidd taking drugs alleged had been as he psychotropic appeal, new for the to a trial he not be entitled would dissenting opinions in previously in their cited reasons I, and Birdsall. Brandon, Gevas,Kinkead drug psychotropic state of this court’s Such was the Burgess Raymond appealed jurisprudence his when directly this court. and death sentence conviction (1997). Burgess, People I note that 176 Ill. 2d failing today’s or to discuss is remarkable decision argued Burgess Burgess decision.Defendant even cite the hearing under section he entitled to a fitness was taking psychotropic medica because he was Following the submission at time of his trial. tion in this however,defendant filed motion brief, his initial hearing pursuant requesting to our deci a limited granted without I. The court the motion sion Kinkead remanding hearing for dissent, the cause recorded “ determining purpose whether defendant ‘limited ingested psychotropic at or near the time of medication ”8 Burgess, sentencing.’ 176 Ill. 2d at 299. his trial and hearing, parties After the conclusion of submit court on the raised the remand ted briefs issues proceedings. entitled Defendant contended progeny and its because to a new trial under Brandon that he adduced at the established the evidence receiving drugs trial, time of hearing. requisite In re not received the but had argued sponse, a new trial was not neces the State sary the limited evidence adduced at because medical Bilandic, Miller, Heiple and concurred

8The fact that Justices they given fact in I surprising in the Kinkead the order the case for specifically took issue with the need remand hearing. lack According to their dissent in Kinkead the limited appeal on evidentiary the in the record of the basis for claim timely not in the that Kinkead did seek “a manner” established I, Ill. 2d at 419 See Kinkead to which he was entitled. J.). (Miller, Bilandic, C.J., J., dissenting, joined by Heiple, and hearing established impaired by that defendant was not ingestion drugs. the of the Miller, court, writing

Justice began analy- the the by stating sis the issue the following: acknowledges “The State that under our decisions Brandon, People (1994); v. Gevas, 162 Ill. 2d 450 People v. (1995), People Birdsall, 166 Ill. 2d 461 v. 172 Ill. 2d (1996), People Nitz, (1996), v. Ill. 2d 151 this court grant simply present trial, could the defendant a new regard to without his actual condition at time the below, proceedings ingestion given his psychotropic drugs during sentencing hearing. the trial and argues, The State however, that we practice should not invoke the of auto case, light matic reversal this of the evidence revealed special supplemental hearing. agreeWe with State that rule of automatic reversal always demonstrates, is not appropriate. As this case there will some be circumstances in which it can be said that psychotropic use of medication did not affect the defen functioning way dant’s mental in such a that relief would appropriate. be previously We are aware that we have declined to make use of retrospective hearings, not ing difficulty in determining, long after the conclusion underlying proceedings, degree of mental enjoyed functioning then People the defendant. See (1996) Birdsall, 172 Ill. (citing 2d Brandon Gevas). Nonétheless, that, at pres we believe least case, ent there are sufficient our depart reasons from previous practice of automatic reversal and to make a case- specific inquiry psychotropic drugs into the administered particular Burgess, defendant.” at 303. court went to conclude that defendant’s own expert witness did not believe that the psychotropic drugs administered to had Burgess could have effect on any Burgess. According court, to the testimony “demonstrates expert [that] we should automatically every drug assume that will render the inevitably person taking it unfit for purposes of trial sentencing, or we therefore conclude that retrospective hearings Burgess, are sometimes proper.” Burgess’ conviction The affirmed at 304. court Ill. 2d and sentence. dissented, I in his dis joined and Harrison

Justice Burgess why dissenting justices questioned sent. The defendants in the differently from the treated should be 2d his. 176 Ill. Burgess, had which preceded other cases J.). Freeman, by (Harrison, J., dissenting, joined at 325 dissent, Burgess’ in case According to that assessment of fitness after-the-fact making the same in rejected Geuas consistently repeatedly had been J., (Harrison, Burgess, and Birdsall. J.). Freeman, by dissenting, joined po in is notable because Burgess The decision original Brandon dissent taken in it the three sition major 75% of the ers, today comprise who justices three that justices of these three believed Recall that none ity. failure to by the implicated due concerns were process 21(a). section Con hearing required hold the under 104— in views, held, expressed they trary previously their in “some circumstances Burgess, that there could be medica which it be that the use psychotropic can said functioning did the defendant’s mental tion not affect Burgess, a relief would way appropriate.” such that be is, Ill. 2d at 303. converse of such statement course, that there could be some circumstances which medication it said that the use of cannot be If, functioning. not mental as did affect Burgess, had maintained prior three dissenters hearing hold the under section required failure to did process, why not due then Justice implicate did why did Jus Burgess analysis Miller construct in it? did Burgess concur Heiple tices Bilandic had any or the cases that overrule Brandon explicitly enunciated the rule of automatic reversal adhered to of relief Rather, Burgess merely type modified the it. had failed to receive be afforded to defendants who would 386.

the requisite fitness at the time of proceed them. Brandon and the cases which followed ings against process had held that due required trial new be ordered in all such cases because of the inherent unreli ability retrospective Burgess changed hearings. rule if it be could later established medications did not impair defendant’s ability partici pate defense, and in assist his due process did not require that a new trial If be ordered. the original Brandon/Nitz dissenters were correct in legal their analyses, as the today were, court they they insists then should not have in a joined decision still left premise which the basic of Brandon intact —that inquiry some must under be in taken to the effect, any, order evaluate if psycho drugs had on a tropic to be tried and Brandon, Gevas, Bird- sentenced.9 Given their in views I, sail, Nitz, Kinkead the three dissenters could have chosen to continue to Burgess. dissent One would certainly Miller, not expect Justice the author of all of dissents, these to author an which opinion grounded was first Brandon. principles recognized in Brandon/ Nitz dissenters cannot have it both ways. Burgess

After announced, opinion the court 21(a) Neal, next People v. addressed section Ill. 2d 541 (1997), a capital post-conviction proceeding.

9I, along McMorrow, Chief with Justice Harrison and Justice my interpretation am Burgess not alone in of the decision. Various panels appellate of the court have taken view that “while Burgess represents departure from the rule of automatic reversal, entirely still consistent with the fundamental underpinning rights protect process of Brandon —to the due aof ingested psychotropic People Flynn, defendant who v. medication.” (1997) App. 512, (reversing 291 Ill. 3d conviction and remand ing pursuant Burgess). People a new for trial See also v. Jamer (1997) son, App. (remanding 292 Ill. matter pursuant Burgess); Abraham, People limited (1997) (same). App. 3d 804-05 petition, post-conviction third, his Neal filed a Defendant alleged a fitness have received he should which hearing pursuant because of to section 104— drugs. ingestion filed a motion The State seeking petition, but dismissal in the circuit evidentiary hear- An court denied the motion. the circuit ing the circuit court held at the conclusion which post-conviction affirmed the relief. This court denied held that relief The court denial of without dissent. normally be will “retrospective fitness determinations process rights protect a defendant’s due inadequate year passed original trial has since the when more than a cases, however, sentencing. circum exceptional In or may the issue of defendant’s fitness stances be such that may fairly ac at the time of trial be lack of fitness cases, curately long after the In such determined fact. automatically apply, will and a defendant will Burgess original sentence be to have his conviction and entitled Neal, at automatically trial.” 179 Ill. 2d set aside for new 554. “excep to be such an The court considered Neal’s case post- the evidence at the tional” case based on adduced hearing. evidentiary Neal, Ill. 2d conviction See “directly (finding analogous at to that 554 situation bar Burgess”). present in al The court further held that though Burgess in evi the court was able to assess the original proceeding,” in time to dence “closer that consequence.” fact, itself, Neal, in and of “of no 179 why explained 2d The this Ill. at 554. was so: “If that properties the chemical of medication are such accurately light a could be assessed in of their effects here, it history, known as was the case defendant’s medical orig not matter followed the would whether evaluation sentencing days years. or The result by inal trial and Neal, 2d be at 554. would the same.” proposition some, in Therefore, stands for the that Neal may is- all, cases, such that the but not circumstances be fairly may of lack of fitness be sue defendant’s or Neal, accurately determined long after the fact. Ill. cases, 554. In a such trial new would not be the appropriate remedy for the a failure hold fitness hear 21(a). ing under section 104 — Neal was issued without any dissent. in decision Brandon dissenters

None of the original three filed sepa rate in opinions the case. This was surprising somewhat because all three had previously noted that post- conviction relief could not obtained be on the of basis Nitz, statutory right. J., See 173 Ill. 2d (Miller, at 165-66 J.). dissenting, joined Bilandic, C.J., and Heiple, De in Neal, spite their Miller, votes Bilandic, Justices pre-Neal to have Heiple appear now returned their a view such claim is not cognizable post-conviction Moreover, cases. one not member of court questioned res judicata why did bar petition since third such pleading under Neal’s petition was Miller, Act. The Bilandic, failure Justices and Heiple in Neal to note any procedural these points seemed to the Brandon hold indicate had they acquiesced by Burgess. Moreover, ing as it was modified the two dis Burgess in Neal. senting justices fully joined Thus, also it appeared all seven members of the court had a compromise reached and had settled a rule upon each could Such an apply. assumption only would be strengthened when the court issued its next opinion in Cortes, People v. area, 181 Ill. 2d (1998), direct capital appeal.

Defendant Cortes argued that entitled to new trial because of his ingestion drugs at the time him. proceedings against Cortes’ trial had been conducted between 24 and October November 4, 1994, sentencing and the hearing was held from November During 9 to November 1994. the post-trial motions, defense counsel the circuit presented court with Brandon and the appel- of this court’s copy decision

389 App. People Guttierez, Ill. decision in late court’s (1995), appellate court ordered which the holding upon based this court’s new trial for defendant alerted the circuit court counsel also in Brandon. Defense Cortes fit to had declared fact that several doctors to the it was unclear medication. Because trial under stand psychotropic nature, the the medication was whether clinical examination trial court ordered a behavioral the instructed defense counsel determine Cortes and Eventually, particulars use medication. of Cortes’ question hearing on of Cor trial court held a fitness objected, noting competence. tes’ retrospective Defense counsel inappropriate only remedy proper After the receiving was to order a new trial. hearing, the trial court denied

evidence at trial. Cortes’ motion for new dissent, this court af

In a decision issued without began analysis We our firmed the trial court’s decision. by noting development case law from time of our further noted that the that Brandon was decided. We Assembly General subsequent had amended section 104— Brandon, that the new amendment but applied retroactively. Cortes, to Cortes’ case could be Burgess The found Ill. 2d at 275 n.2. con case trolled Cortes’ fairly because Cortes’ fitness “could be accurately because, after fact determined Burgess, as in showed that the medication evidence ingested any by [Cortes] did not affect on fit have (citing Burgess, Cortes, Ill. 2d at 276 ness.” Ill. 554). 303-04, Neal, 2d at 179 Ill. 2d Burgess, unequivocally Thus, Neal, il- and Cortes of this court had lustrate that the seven members ground question reached common over the how drug original dissent- handle the issue. recognized right fully joined ers had in decisions that issue, or collateral to raise the whether be direct 390

review, in cases where a had been of deprived 21(a) the section at the hearing time trial. 104— In the addition, dissenting two in Burgess had justices joined in the post -Burgess decisions which held that in exceptional cases retrospective fitness determinations could resolve the psychotropic issue.

Our most published recent opinion addressed II, was Kinkead section 182 Ill. 2d 104— appeal from the ordered in Kinkead I. hearing remand Neal, Burgess, Applying case-specific approach Cortes, the court determined that

“the hearing remand gives conducted in the case at bar significantly rise to a greater concern than existed Bur Cortes, gess, or ingestion Neal that the defendant’s of anti- psychotic drugs during plea sentencing proceed ings Therefore, influenced his decision-making abilities. our conclusion that the defendants in those cases were not entitled ato new trial does compel not a similar conclusion Indeed, [here]. in this case much of appears the evidence favor argument defendant’s the Thorazine he took may ability have influenced to make a reasoned deci plead guilty greater charges sion to and seek a sentence II, of death.” 2d Kinkead Ill. at 347.

The court therefore concluded that Kinkead should receive a new trial.

The three original Brandon dissenters disagreed, time with Justice Heiple writing for them. The dissent ing justices took issue with specific aspects two court’s decision. on first centered the retroactive ef 21(a). fect of the amended section Despite the fact in Cortes all justices three had joined opinion which explicitly rejected notion that the new amend (see Cortes, ment was n.2), retroactive 181 Ill. 2d at 275 the dissent now believed that was in order. retroactivity II, Kinkead J., (Heiple, 2d dissenting, First America joined Bilandic, JJ.), citing Miller and (1996) Armstead, Trust Co. v. Ill. (apply doctrine). ing rights vested Notwithstanding alleged 21(a), the section retroactivity of the amended 104 — the court’s view disagreed three dissenters with signifi remand. It is at the on evidence adduced Burgess disavow to note dissenters did not cant that the fact, rea In their that decision. expressed or views recognition Burgess that evi soning was based could establish at a later proceeding dence adduced drugs impair did not definitively that the assist in his ability participate dissent, the evidence adduced According to the defense. with the trial court’s hearing “fully comports at the *** use of Thorazine conclusion that defendant’s to stand significant regard with to his fitness medically II, J., 2d at 358 (Heiple, trial.” Kinkead dissent JJ.). reasons, Bilandic, joined by Miller and For these ing, justices the did not believe that Kinkead was dissenting entitled to new trial. drug this foregoing psychotropic

The review of court’s that our affirmatively today’s case law belies assertion in has in an developed unprincipled case law this area Ill. the See 189 338. To unintelligible and fashion. original that the three contrary, my review demonstrates in decisions which joined dissenters BrandonINitz be it an after- recognized right inquiry, the to make Nevertheless, justices now inquiry. these three the-fact our case law to this defen applying that current believe law “errone dant because that case is unnecessary is dissent, this neither As I stated at the outset of ous.” arguments asked court to revisit the parties the have this only argu and reason those made in Brandon Nitz. in is the ments have resurrected this case because been a fourth vote to achieve three dissenters now have Gevas, Kinkead day achieve on the they which could not were Birdsall, Nitz, Neal, and Cortes II, Burgess, I and Today’s merely Brandon. decision issued —to overrule as of four reiterates, justices time with the approval this three, to the opposed arguments same made by Justice Miller his initial my dissents. While are colleagues quick to out point alleged the legal deficiencies Gevas, Brandon, II, Kinkead I analyses contained Nitz, they utterly are silent as to fact that these by Burgess decisions were modified past and that for the court, two years, this until up today, had been content to follow the approach Justice Miller himself had in Burgess.10 constructed What three dissenters have failed to explain today why is defendant Mitchell in this case cannot the opportunity have to establish that antipsychotic drugs ingested may have him in affected If, that did way Burgess. not affect defendant as Justice Burgess, clearly Miller stated in there might be some cir trial, cumstances would not necessitate a new then why does he to analysis refuse his own apply the case time that Brandon at bar? Since the issued, Justices Miller, Bilandic, and have concurred in Heiple subsequent hold decisions which that some sort of after-the-fact in quiry Thus, necessary cases such as this. I believe the opportunity to overrule Brandon prog its eny has In long passed. several of our earlier decisions on issue, specifically repudi State asked court to ate the Brandon rule, explicitly and we declined do so. In interim, we opinions have issued of a approving if right inquire drugs af Although fected changed fitness. the court has its view as to made, how that is to be inquiry the court has consis tently recognized ability a defendant’s to raise the issue Bran in consistently, every and the court has case since don decided, on resolved the issue its Our merits.

10 Following Burgess, the issuance this court remanded to appellate court those cases which had been decided under the See, People e.g., automatic reversal rulé enunciated in Brandon. (1997) Johns, (directing appellate 173 Ill. 2d 535 court Burgess). in holding light reconsider its represented previous opinions best effort this court’s by questions failure to raised with the critical deal 21(a). by hearing required I section have held the 104— opinions represent my colleagues those remind must judiciary,prosecu upon such are relied law and as as of this defendants, as the citizens tors, criminal well original to shift Brandon dissenters the three state.11For gears having participated in and authored now, after drugs psychotropic opinions were cases in which in other respect, and without issue, is, all due inconsistent in principle. with earlier, I contends that stare decisis As noted the court “[n]o applied in case because reasonable need not be this argue jurisprudence could of this court’s observer principled developing in this has been the law in area intelligible The Ill. at 338. court fashion.” 189 although 2d rejected any points in court that, out 1995 this being hearings retrospective reliable, as notion of fitness years problem no with a ret 1997, later in “we saw two rospective hearing years after

fitness conducted sentencing.” 338, Ill. at cit defendant’s trial ing The then Neal, 179 Ill. 2d 553-56. court states “[i]n 1998, that the reversal rule we held automatic an- example

11An be found the case of of such reliance can inmate, 1998, row Leslie Palmer. On June Palmer other death alla, alleged, post-conviction petition in inter filed a which at the time he was denied section sentencing hearing. error capital The State confessed on sentencing hearing claim, drug agreeing a new psychotropic eventually agreement required. parties reached exchange forgo appeals all future which would agree- approved the 65-year The circuit court prison sentence. ment, supreme court file on closed defendant’s Clearly, confessed error reliance September 1999. State At- drug Had State’s previous psychotropic decisions. on our Palmer, torney County, prosecuted chosen not of Mason who issue, drug be Palmer would still confess error on the today. death row Brandon had replaced by been the ‘case-by-case’ ap proach and that a defendant longer could no a prevail on a request for new trial simply by showing that he had taking been medications at the relevant II, 338-39, time.” 189 Ill. 2d at Kinkead citing 182 Ill. 2d I 340. have already demonstrated today how the court has our manipulated in jurisprudence by this area conveniently omitting the role Burgess played in this his and tory the hand the original dis Brandon/Nitz senters in creating Burgess. While Justice Rathje, had who was not a member this court at the times those decided, cases were is entitled the view that such a development is unprincipled unintelligible, and I find beyond Bilandic, belief Miller, that Justices and Heiple all, could in Miller, share that view. After it was Justice in Burgess, writing for the who the door opened Burgess, retrospective hearings. See Had Miller, Bilandic, at 303. Justices been Heiple concerned with the volte face, propriety they such should not have been willing to adopt Burgess and should not have added their imprimatur decisions Neal to the and Cortes —two cases which followed the approach Burgess. Moreover, endorsed to cite Kinkead by them II an example as of unprincipled jurisprudence is to mis decision —the court in Kinkead II characterize the merely precedent followed the court as established Burgess in Neal and Cortes. Under the case applied decisions, law set forth in those the court concluded that defendant Kinkead was entitled to a new trial. addition,

In in Burgess the court’s decision to change Brandon from line rule announced in bright case- specific criticized at approach, though by the time two court, hardly members of the type change the overturn of stare decisis. circumstance that warrants II, Kinkead As noted in case-by-case approach due comports process with ensures those drugs ingesting psychotropic were who were defendants ability impaired that their to the extent them today’s hampered. participate Under in the defense similarly now have no decision, situated defendants such the doctrine of I do not believe that whatsoever. recourse pro to so when do should be overturned stare decisis unjust point that, when I out such an result. must duces capital case, all of context of a as arises in the this issue been, ensure, as the statute our have the need to cases drugs antipsychotic impair required, not or did then hamper ability in or her to assist the defendant’s point important. This last all the more defense becomes to another disturb overlookedfor leads should be psychotropic ing aspect today’s decision. All our ap drug capital appeals, have either direct cases been proceed peals appeals post-conviction from trial or from ings. permissive Although review, court is a court of this capital appeals directly. to See Ill. Const. come us 651(a). 4(b); 609(a), § As VI, 134 Ill. 2d Rs. art. presented frequently result, court is with the same arguments case, in term. Once a in case after term after argu legal question has further been settled and closedto emphasize enough I, one, the need ment, for cannot application of this its consistent in similar cases. law public the cannot seen the bar and to be one court be constantly changing opinion flux,” “in from to that is opinion, particularly capital Both the State and cases. appellate a de bar should entitled view defense be given issue as static once that is cision of this court on Palmer sue has been settled. Both this case case (see (Freeman, dissenting, joined by J., 2d at Ill. J.)) sadly McMorrow, all demon Harrison, C.J., and too arbitrary opposed fate, as it is the hand of strate that law, rule of mean the difference established will today my view, the fails between life and death. In recognize following important stare decisis need for capital cases. B light In above, I believe that the circuit court by dismissing psychotropic in this case erred drug evidentiary hearing. claim an without Defendant’s petition alleged taking that was two med ications at time of his trial. Had defense counsel requested time, fitness at that the circuit court required by hearing. would have been statute to hold the Therefore, I would instruct circuit court to conduct evidentiary hearing in order effect, to establish what any, drugs during if those had on defendant’s fitness proceedings. acknowledged court, As this Neal, may cases, certain “circumstances be such that the issue *** of defendant’s fitness or lack of at the time may fairly accurately long be determined after the Burgess apply.” cases, fact. In such Neal, will 179 Ill. 2d I, therefore, 554. would instruct the court to follow precedents Burgess, Neal, of this court as set forth in Cortes, and Kinkead II.

II Today’s message result the sends unfortunate to the public bar, bench, the the and that “this court does not law, decide on issues based the but based instead who sitting happens particular to be on the court a time.” (1981) People (Clark, Lewis, v. 129, J., 88 Ill. 2d concurring). respect, In sentiments, Justice Clark’s expressed ago, today: almost two decades have resonance my that, is opinion having expressed

“It considered once my disagreement opinion with an of the court and then having opinion followed such in a case which was decided shortly after, my it posi- would be inconsistent to reverse justice simply joined tion I because new has this court. *** agree doctrine of the stare decisis does not mean contrary, rigid. that the law is and On I immutable the am a firm in the continuing believer evolution of our law and the requirement change changing to meet cir- think, however, I cumstances. that the circumstances which changes in in the law do not include changes warrant Rather, significant I consider the circumstances personnel. in law those which bring changes to about the are enough unjust impracticable rule or and existing an of law render just When bring about a sensible and result. which will change changes present, vigorously I will vote those are the law.

*** differing from judge expressed [0]nce a has view view, majority in the majority, acquiesced and has then the point writing opinion accords the to the which rightful controlling law on majority’s place view its as the matter, consistency the court’s regard due for the the judge majority’s follow opinions leads a to continue to (1981) Lewis, 129, (Clark, People 2d 169-71 view.” v. J., concurring).

Moreover, Justice Clark’s view of stare decisis not court, at all curiam per opinion, novel. This observed just years ago that: five is means

“The doctrine of stare decisis which courts erratically, merely change law will ensure but develop principled intelligible will in a fashion. Stare permits society presume decisis that fundamental in the principles are established law rather than proclivities of Bar v. Chicago individuals.” Ass’n Illinois (1994). Elections, 161 Ill. State 2d Board (1999) (Bilan Fuller, See Ill. People also dic, J., that stare decisis “should not dissenting) (noting be some disregarded simply because members minds”). disagree By joining have changed or their Cortes, Miller, Bilandic, in Burgess, Neal, and Justices ceased to their on this Heiple spirited voice dissents challenge legal analyses issue and contained dissenters, progeny. Brandon its three those cases, legal did not as do question, they today, To contrary, of the earlier decisions. underpinnings they merely changed remedy alleged for the viola after-the-fact, tion —from automatic to an case- reversal Therefore, I that specific respectfully disagree inquiry. the doctrine of stare decisis must be overridden today on that in basis our case law this area was incorrect. Al- though the three original Brandon dissenters consis- voted tently against the automatic reversal rule created Brandon, were they instrumental the ret- creating rospective approach they now criticize as “confused and they erratic.” Had they indeed felt that way, should never Burgess adopt have voted to in the first place.

IAs have endeavored to by my show review of our precedent, not one changed circumstance has in our psy- chotropic drug jurisprudence since this court announced Burgess. its decision in All of legal arguments set forth in today’s opinion are the same arguments were made time Brandon Nitz and considered and were decided. These arguments same were in existence when the court Burgess. only issued “circumstance” that has changed since this court Burgess announced Brandon, Nickels, that Justice joined John who au- Gevas, joined II, in Kinkead I thored joined Birdsall, Britz, Kidd, Nitz, Neal, Cortes, Burgess, retired, Rathje has and Justice appointed has been to fill vacancy by created I the retirement. submit this type of “circumstance” does not to the rise level neces- doctrine of stare decisis. sary to overturn Unfortunately, today’s decision demonstrates [cjourt’s reason, “[pjower, currency is the new of this Tennessee, decisionmaking.” Payne 808, U.S. (Mar- (1991) 720, 748, 115 L. Ed. 2d 111 S. Ct. J.). shall, J., dissenting, joined by Blackmun, As noted dissent, throughout this neither the law nor the facts Brandon/Burgess supporting rule underwent any since time issued change psy- court its last II, Kinkead chotropic case, Only in 1998. drug personnel of this did. One must now wonder how decisions, many previous other of our decided 4-3 margins, similarly will be overruled the basis of a again change personnel. I that nei in must stress court party to court revisit Brandon ther in this case this asked today sponte. progeny. If sua this and its The court acts disregard cavalierly precedent, its own we court can so surely justly expect we others to follow nor can cannot Today’s imprudent action not. criticize those who do nothing precedent open our invites but defiance Clearly, legitimacy. seriously this court’s undermines Burgess apply genuine to the there is no present reason not to attempt style to its case, and the court’s decision stability one and reason this as made restore “some (189 339) credulity. beyond It is area” Ill. 2d obvi at me, least, that four of this court are ous members willing any principle that, law to discard of constitutional recognized past, in senting three over votes of dis justices currently justices four and with which disagree. At This does not bode well for the future. year, makeup of end of this current this court will undergo change justices by some because four virtue of may I am election or retention not return. While clairvoyant, I do know that when the court reconvenes January makeup 2001, the of the court will current have changed. my hope It is sincere case will not this serve as a model for future courts to follow.

CHIEF Mc- JUSTICE HARRISON JUSTICE join MORROW this dissent. Denial of

Dissenting Opinion Upon Rehearing dissenting: FREEMAN, JUSTICE respectfully I from the decision to dissent court’s deny rehearing. again, petition I Once my strong disagreement emphasize must and sustained with the decision in this As court case. noted my original legitimate dissent, reason no exists this departure case which would from stare decisis. warrant In his petition for rehearing, correctly observes that neither he nor State asked this court to revisit Brandon and progeny. its Defendant further out points that during argument, May 10, oral held on 1999, not one member of any raised question about the validity controlling precedent. Not surprisingly, defendant claims that sponte the court’s sua treatment issue was “fundamentally unfair.” He notes that generally most courts abstain from deciding issues on which the parties have had no opportunity to present argument. Defendant asks and the State be allowed to file supplemental briefs mat- addressing the by ters raised and disposed of the court sua sponte. I believe that defendant’s are well requests taken. At very least, defendant’s attorneys given should be opportunity reargue defendant’s ineffective assistance of counsel/psychotropic drug light claim in of new legal court, standards announced majority new standards that his attorneys possibly could not have I foreseen. Supreme note when United States Court Booth Maryland, 496, overruled v. 482 U.S. 96 L. 440, (1987), Ed. 2d S. Ct. the Court specifically ordered the to file parties briefing additional materials addressing validity prior precedent. Payne See Tennessee, 808, 720, v. 501 U.S. 115 L. S. Ed. 111 Ct. (1991). Moreover, correctly as defendant observes in has, this petition rehearing, since Mitchell announced, supplemental allowed in two briefing Johnson, cases that are v. currently pending-People No. (order February 29, 2000), entered People v. (order 2000). Jamison, 21, No. 80967 entered March Because attorneys this defendant’s were not on notice that the validity ques- Brandon and its was in progeny tion, I would them the same to re- grant opportunity present their claims. The court’s to do unwillingness this is hard to even understand. in this because sum, rehearing I case grant

In would to overrule Brandon and its I the court’s decision believe my colleagues’ In refusal light was ill-advised. progeny request that, grant do I defendant’s alternative would his claims reargue light he be allowed new this case. law established dissent. joins McMORROW JUSTICE (No. 83579. ILLINOIS, THE Appel-

THE PEOPLE OF STATE OF RICHARDSON, FLOYD lee, Appellant.

Opinion February Rehearing April denied 2000. filed 2000 .

Case Details

Case Name: People v. Mitchell

Court Name: Illinois Supreme Court

Date Published: Apr 3, 2000

Citation: 727 N.E.2d 254

Docket Number: 83281

Court Abbreviation: Ill.