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Behavioral Clinical Exam (BCX) or Exams to Determine Mental Fitness for Trial – Shelton Judge’s Manual – Part III

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             Non-Attorney and physician/scientist/civil rights activist/expert, Dr. Linda Shelton, respectfully offers to the court the following factual information, which supports defense motion to vacate the order of this court to raise bail for alleged violation of bail because defendant refused to answer questions at a BCX exam. This refusal to answer questions at the exam is defendant’s statutory right as follows

1.     Court determinations of fitness are made by a court hearing and not by the forensic examiner. The examiners report is merely evidence.

2.      Fitness by statute and case law is determined by the judge, if jury is waved, or the jury in a fitness hearing per 725 ILCS 5/104-11(c):

     (c) When a bonafide doubt of the defendant’s fitness has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State. However, the court may call its own witnesses and conduct its own inquiry. [emphasis added]

3. A fitness order is NOT evidence of a bonafide doubt per the First District Illinois Appellate Court in People v. Hill, 345 Ill.App.3d 620, 803 N.E.2d 138 (2003).

      [W]e find that the trial court’s decision to appoint an expert to examine a defendant has no bearing on the court’s ultimate conclusion as to whether a bona fide doubt as to the defendant’s fitness to stand trial has been raised.

4. A Court may order a fitness exam if there is a bonafide doubt of defendant’s fitness per 725 ILCS 5/104-11. This doubt must be specific and not a general statement and must be expressed in open court on the record. It is not sufficient for a judge to state that a defendant’s behavior or writings suggest a fitness exam is needed. The judge must specify the nature of the behavior or the details in the writings that suggest fitness is absent. Absent such detail the order is insufficient.

5.      725 ILCS 5/104‑14(c) mandates that the Court inform the Defendant that he has a statutory right to refuse to answer questions at the BCX exam:

Use of Statements Made During Examination or Treatment.

(c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise him that he may refuse to cooperate with the person conducting the examination, but that his refusal may be admissible into evidence on the issue of his mental or physical condition. [emphasis added]


6.      725 ILCS 5/104‑13(d) mandates that the Court MAY not revoke bail if the Defendant is ordered to undergo a BCX exam in order to accomplish the exam:

Fitness Examination. 

      (d) Release on bail or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered.

     7. Therefore, defendants have a statutory right to refuse to answer questions at a BCX exam and this act does not permit the Court to revoke or alter bail for violation of the condition of bail to appear at a BCX exam and answer questions.

8.      The report of the fitness examination ordered from Forensic Clinical Services is due within 30 days of the date of the order per 725 ILCS 5/104-15.

     9. The fitness hearing must be held within 45 days of receiving the report of the fitness exam, regardless of the results of the report per 725 ILCS 5/104-16:

      (a) The court shall conduct a hearing to determine the issue of the defendant’s   fitness within 45 days of receipt of the final written report of the person or persons conducting the examination or upon conclusion of the matter then pending before it.

     10. This Court must therefore schedule a fitness hearing in this case no later than 45 days after receipt of the report of the fitness exam received by the Court on November 25, 2008 (January 9, 2008).

     11. The details of the forensic examiner’s report have no bearing on scheduling the fitness hearing. A judge may not continue to re-order the BCX until he obtains a report of fitness or no fitness, in order to delay a hearing. The hearing is a statutory right.

     12. The defendant has a statutory right to continue to refuse to answer questions. In general if a defendant refuses to answer questions, it is futile to re-order the fitness exam. The result is that there will be no forensic examiner’s recommendation as to whether or not the defendant is fit. The fitness hearing will have to proceed without professional opinion based solely on other witnesses called by the court, which may include the transcript of statements made by the defendant and pleadings written by the defendant.

[T]he trial court’s decision to appoint an expert to examine a defendant has no bearing on the court’s ultimate conclusion as to whether a bona fide doubt as to the defendant’s fitness to stand trial has been raised. Hill 803 N.E. 2d 138, at 145.

     13. Courts may still determine fitness even though the forensic psychiatry examiner is unable to determine fitness based on defendant’s unwillingness to cooperate:

Courts determine fitness based on three factors: the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion on the defendant’s competence to stand trial.  Hill 803 N.E. 2d 138, at 145.



Although the . . . [the expert] was not able to “come to [a] definitive opinion in regards to defendant’s fitness to stand trial,” this failure was due to defendant’s lack of cooperation. Hill 803 N.E. 2d 138, at 145.


The ultimate decision as to a defendant’s fitness must be made by the trial court, not the experts People v. Bilyew, 73 Ill.2d 294, 302 (1978) [emphasis added]


In Hill case the court concluded that the defendant was fit to stand trial. A previous, though not contemporously timely exam had determined defendant was mentally ill but fit to stand trial and the judge’s observations in court led him to conclude the defendant understood the players in the court and the charges against him.


While these reports provide some evidence of mental illness, they are insufficient to counter the several indications in the record that defendant understood and participated at trial . . . . [and] exhibited no irrational behavior.  Hill 803 N.E. 2d 138, at 146


14. The Illinois Supreme Court has repeatedly held that when determining whether a bona fide doubt of defendant’s fitness exists, courts should consider the following factors: the defendant’s irrational behavior, the defendant’s demeanor at trial and any prior medical opinion on the defendant’s competence to stand trial. People v. Harris, 206 Ill.2d 293, 304, 276 Ill.Dec. 286, 794 N.E.2d 181, 190 (2002).

15. Evidence presented at the fitness hearing may include a report from forensic clinical services, or from private psychiatrists and psychologists retained by either side. The report may state that the defendant is fit or unfit for trial and the examiners detailed reasoning and clinical judgment as to why he came to that conclusion, or may simply be a statement that the examiner was unable to make this determination at the exam because the defendant was unable or unwilling to cooperate with questions.

16.  Although the Cook County Court’s Forensic Clinical Services Department has made a policy that all BCX exams will be performed without video or audio recordings, or witnesses, there is NO absolute bar to recordings or witnesses (assuming they say nothing and merely observe) according to the ethical standards of the American Academy of Psychiatry or the American Academy of psychiatry and the law. In fact, despite the statements of Cook County Forensic Clinical Services in the past that witnesses interfere with the exam, it is known in psychiatry that silent witnesses may be helpful in order to gain the defendant’s cooperation with confused, mentally retarded, or unusually intelligent and court savvy individuals to permit recordings or witnesses in individual circumstances.

17.  The United States Supreme Court in Indiana v. Edwards (2008) went beyond Faretta and stated that even if a defendant is mentally fit to stand trial, the State may deny the defendant the right to self-representation on grounds that he is mentally not competent to represent himself to the point he would be denied a fair trial. They stated that mental illness is not a unitary or static concept and that the trial judge must carefully consider this issue. Yet they set NO guidelines as to the definition of mental competency to self-representation and specifically rejected Indiana’s blanket bar on self-representation if the court finds the defendant cannot “communicate coherently.”

18.  This poses a dilemma for the court as the court must itself determine mental competency for self-representation without any guidelines at present.

19.  I recommend that the court question the defendant on the record and determine: 1) if the defendant is able to formulate questions logically that address specific issues related to his case, 2) if the defendant understands the role of the players in the court as well as the charges against him and the possible sentence, 3) if the defendant is oriented as to time, place, and situation, 4) if the defendant expresses basic understanding of the concept of legal research and the significance of statutes, codes, and case law, and 5) if the defendant is able to control his behavior and emotions so that he can effectively listen, take notes, and formulate questions including questions to a stand-by counsel regarding courtroom procedure. If all of these issues are answered in the affirmative then the defendant should be considered mentally competent for purposes of self-representation.

20.  Unfortunately, courts are left to formulate criteria for mental competence for self-representation with the United States Supreme Court holding in abeyance further decisions upon the criteria for mental competence for self-representation until further cases reach the Court.

21.  Finally, I recommend that with very intelligent and legally savvy defendants who refuse too answer questions at a fitness exam because they feel, despite the Court’s dicta in Estelle v. Smith, 451 U.S. 454 (1981), that the defendant has no constitutional fifth amendment right to have a witness present during a fitness exam or a recording of the fitness exam, the Court should ask basic fitness questions on the record to prove the defendant has the mental understanding and lack of confusion necessary to stand trial including: 1) the date, time, place, and situation, 2) the role of the players in the court, 3) the nature of the charges against him, and 4) the possible sentence if convicted, as well as 5) the meaning of being convicted and sentenced.

22.  The answers to these questions can then be utilized by the court in lieu of a professional’s fitness exam report to determine the issue of fitness, but not the issue of mental illness. A professional forensic psychiatric exam is not really necessary to determine fitness, but is necessary to determine if the defendant suffers from mental illness.

                                                                        Respectfully submitted,



                                                                        Dr. Linda Shelton

Written by Linda Shelton

December 8, 2008 at 6:05 am

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