¶1dissenting:
¶2Because I believe that defendant was denied effective assistance of counsel, I respectfully dissent. Specifically, I disagree with the majority’s conclusion that defendant was not prejudiced by his counsel’s failure to pursue a judicial determination of his fitness to stand trial. I believe there was sufficient evidence to raise a bona fide doubt regarding defendant’s fitness to stand trial. Therefore, defense counsel's failure to petition the trial court for a fitness hearing constitutes ineffective assistance.
¶3In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the Supreme Court set forth a two-pronged test for determining whether a defendant was denied his sixth amendment right to effective assistance of counsel. Under Strickland, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In addition, defendant must show that he was substantially prejudiced by his counsel’s deficiencies.
¶4On the issue of prejudice, the majority correctly states that the question is whether defendant has established by a preponderence of the evidence that at the time of his trial, a bona fide doubt existed regarding his fitness to stand trial. However, in analyzing the evidence the majority seems to confuse the low evidentiary burden for raising a bona fide doubt with the more stringent burden defendant must meet to prevail at a fitness hearing. Rather than recognize that a conflict in the medical evidence creates a bona fide doubt, the majority resolves this conflict in favor of- defendant’s fitness. By doing so the majority decides the merits of the fitness claim, without first giving defendant the benefit of a fitness hearing.
¶5At this stage, defendant need only prove that the original trial court would have conducted a fitness hearing if it had been apprised of all the relevant facts. I believe defendant has met this burden. Two different judges in the trial court found a bona fide doubt regarding defendant’s fitness to stand trial, and ordered a fitness hearing. Although these orders were never withdrawn the trial court never conducted a fitness hearing. Because defense counsel mistakenly believed that a hearing had already been held, he did not raise the issue with the judge who actually heard the case.
¶6The fact that two judges in the trial court ordered a fitness hearing is highly persuasive evidence that a bona fide doubt existed at that time. The majority glosses over this evidence by referring to this court’s holding in defendant’s direct appeal (People v. Eddmonds (1984), 101 Ill. 2d 44), that defendant was not entitled to a fitness hearing. It is important to note that the issue on direct appeal was whether the trial court should have ordered a fitness hearing sua sponte. This court decided the trial court did not err. That decision was based on the fact that the most recent reports from mental health professionals showed that defendant was fit for trial, that defense counsel did not make a further request for a fitness hearing, and that defendant testified lucidly at the hearing on his motion to suppress as well as at trial. Although I believe this analysis was correct based on the facts known to this court at the time the direct appeal was decided, given the fact that defense counsel mistakenly believed that a fitness hearing had been held, I now believe that analysis is wrong.
¶7In light of defense counsel’s error, the factors enumerated by this court in defendant’s direct appeal do not negate the existence of a bona fide doubt regarding defendant’s fitness. The fact defense counsel thought a fitness hearing had already been conducted explains why he did not seek a fitness hearing. In addition, this fact explains why defense counsel did not seek to have defendant re-examined by a mental health professional regarding his fitness for trial.
¶8At the time of trial, there was a conflict between the medical evidence available to the court. Doctors Reifman and Stipes had previously found defendant unfit for trial. Dr. Reifman later changed his opinion, stating that defendant was fit provided he took prescribed medication. Defendant was not taking the medication at the time of trial. On the other hand, Doctors Kaplan, Goldsmith and Rabin found defendant fit for trial, with no mention of medication. Even though none of the doctors were subjected to cross-examination on their opinions, the majority has decided that the more recent medical reports which found defendant fit are correct. By doing so, the majority implicitly finds that the opinions finding defendant unfit are incorrect. While the time of the examination is a relevant factor to be considered when assigning weight to the evidence, I do not believe that the mere passage of time should automatically render the opinions of Stipes and Reifman obsolete. I believe the conflicting medical testimony, combined with the observations of defendant’s two attorneys that defendant was not fit, created a bona fide doubt regarding defendant’s fitness, which doubt can only be resolved through a fitness hearing.
¶9Finally, although not an issue in this appeal, I agree with Justice Goldenhersh’s dissent in defendant’s direct appeal, which found that defendant was arrested without probable cause. See Eddmonds, 101 Ill. 2d at 71 (Goldenhersh, J., dissenting).
¶10For the foregoing reasons, I respectfully dissent.