Opinion
No. 19436. Criminal 579-64.
October 14, 1966.
On petition for rehearing.
For original opinion see 124 U.S.App. D.C. 387, 365 F.2d 920.
Mr. Joseph F. Hennessey, Washington, D.C. (appointed by this court), for appellant.
Mr. Charles A. Mays, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker and William C. Weitzel, Jr., Asst. U.S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and FAHY, DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEVENTHAL, Circuit Judges, in Chambers.
ORDER
On consideration of appellee's petition for rehearing en banc and appellant's opposition thereto and there not being a majority of the circuit judges in favor of a rehearing of the above-entitled case by the court en banc, the petition for rehearing en banc is hereby denied.
DANAHER, BURGER, McGOWAN and TAMM, Circuit Judges would grant appellee's petition for rehearing en banc.
Statement of Judge Leventhal why he would deny appellee's petition for rehearing en banc:
In voting to deny the Government's petition for rehearing en banc, I note that I do not consider the decision of the division to be determinative on the issue of whether a competency hearing is required when the only evidence before the judge is that the defendant is taking drugs. The case at bar is one where the evidence brought before the judge certain facts which at the very least unsettled any inference available from defendant's lucidity and apparent rationality. These facts include, importantly: The court-appointed psychiatrist found that this defendant had an acute brain syndrome under conditions of narcotics usage, on the occasion of each of the three pre-trial examinations. St. Elizabeths had never examined defendant while under the influence of narcotics. The acute brain syndrome is such as to preserve a general degree of present orientation, but to grossly impair memory recall. Last but not least, the expert testimony of record reveals that the existence of an acute brain syndrome is not readily observable.
In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) Robinson's trial counsel presented a motion and request for continuance based on "present insanity," which the Supreme Court interpreted as "necessarily placing in issue the question of Robinson's mental competence to stand trial," 383 U.S. at 384-385, n. 6, 86 S.Ct. at 841. Absence of such a motion would not seem controlling, at least when as here the condition is such as not to be readily apparent to laymen.
The implication of Pate v. Robinson in terms of trial procedure are not easy to ascertain. The Government suggests that the panel's division entails inevitable continuances for psychiatric examinations of narcotics addicts that will embarrass judicial administration. On the other hand, a condition of drug taking at trial would apparently be enough under Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), to require a hearing on collateral attack, when the evidence would be stale. I offer for consideration the possibility that the trial judge could proceed with the trial, particularly if the end is nigh, but schedule a psychiatric examination and hearing on competency immediately thereafter, perhaps even while the jury is deliberating. The court's disposition, sua sponte or on post-conviction motions, based on such contemporaneous evidence, would avoid the difficulties inhering in a hearing long after the fact, and may obviate retrials.
In any event, I think the problems of judicial administration that lie ahead will be better resolved in the course of customary case by case experience than through en banc consideration in the case at bar.