Oliver H. Fooks, Jr. v. United States, 246 F.2d 629

Oliver H. Fooks, Jr. v. United States

246 F.2d 629

D.C. Cir.

1957

Check Treatment

*1 Jr., Appellant, FOOKS, Oliver H.

v. America,

UNITED STATES Appellee.

Nos. 12998-13000. Appeals

United States Court Circuit. District of Columbia

Argued 1956. June July

Decided Rehearing En Banc Denied

Petition March to Petition for in Relation

Statements Rehearing En Banc June *2 snyder (appointed by Mr. Frank Reif C. C., Court), Washington, D. District appellant.

for Stirling, Mr. E. Asst. U. S. Tillman Gasch, Atty., with whom Oliver Messrs. Troxell, Atty., Principal U. S. P. Edward Carroll, Atty., U. Asst. S. Asst. and Lewis Atty., ap- U. S. for were the brief pellee. Rover, Atty., Mr. U. Leo A. S. filed, at the time record was also entered appearance appellee. an Before K. Miller, Wilbur Bastían Judges. Circuit Burger, PER CURIAM. cases, pro- In these after intermediate ceedings detailed

here, appellant granted Judges before the District Court presided separate had who at three trials appellant in which been convicted (1) dangerous weapon; assault with a (2) rape; assault with commit intent to (3) another assault with intent rape. commit so conducted were under U.S.C. determine appellant’s competency at the of his several trials.1 testimony was After extensive eight covering taken, in all trial some findings days, separate each of the appellant was three mentally competent found to understand charges properly him as in his defense the time sist and that Two wtien he was sentenced. Judges specifically ruled of the District that, the Government had even establishing burden of beyond doubt, a reasonable to which express opinion, no it had car now we burden; fairly ried that Judge, the third District ferable that consent, who, by heard sitting together. evidence while By heard the and the defendant consent of 18,000 judge Judges tried No. con Government, who case District separate hearing. ducted No. No. tried cases findings prejudicial, like- did were with one supported by evidence substantial wise. clearly and thus were not erroneous. findings We think the *3 judg- judges clearly summary correct and the A brief facts in appealed keeping ments are record aid in from will real issues perspective: appellant in was indicted Affirmed. separate in three times 1953 for three Rehearing and distinct offenses in committed at differ- On Banc. separate ent times. After three trials Judge, Before Chief Edgerton, judges, appellant before three different Miller, Prettyman, Baze- K. Wilbur was convicted and on sentenced each Washington, lon, Danaher, Bas- Fahy, charge. separate The three sentences Judges, in and Circuit Burgee, tían imposed appellant on are therefore not Chambers. opin- “consecutive” in the sense our usually They ions use term. are PER CURIAM. unrelated three for sentences three un- peti- appellant’s Upon consideration of and, they course, related convictions rehearing banc, in for a tion must all be served. by Ordered that the afore- Court appellant Observation of while con- hereby, petition be, denied. and it is said government led fined authori- custodial right file Each reserves the ties mental condition. of his views. to 18 Pursuant U.S.C. 4245 a certifi- noting probable cate was issued cause Judge EDGERTON Circuit Chief and appellant incompetent believe that was Judges BAZELON, FAIIY and WASH- his trials. The same grant petition for INGTON would judges presided at his three rehearing in banc. hearings1 pur- for trials conducted Majority and of Statements of the determining pose of whether or not he Minority Court in relation sufficiently competent was the time Rehearing Petition for En Banc. proceed- of his ings trials understand BURGER, Judge, Circuit and in whom assist his defense. At these Judges PRETTYMAN, K. each of WILBUR which lasted several MILLER, days,2 DANAHER and issue of BASTIAN thoroughly pursu- is filed was concur: This statement examined. testimony by psychia- to our order March There was several ant including appellant’s petition trists, denied which the doctors who ex- rehearing by appellant impris- en banc. occasioned amined while support certify- comments in and who issued Bazelon’s oned ing the probable against granting voted there was his vote. We cause to rehearing appellant en banc after an exhaustive was believe government transcript psy- tried and convicted. A reexamination entire prior Hospital confirmed our chiatrist which conclusion D. C. General by contrary3 held trial court testified to the on the basis by days The certificate issued the Director of which consumed about five of trial applied subsequent hearing Prisons the Bureau of to all time. before the thus, pursuant judge three convictions case lasted trial two and days. judges 18 U.S.C. each the trial one-half required hearing. hold appellant examined 3. Dr. Perretti four 13,000, however, No. case e., April 19, April 26, i. times May by (dated an directed order May Appellant’s 11, 1955). March April 22, resulted trials convictions Actually only Thus, two wore A October 21 held. June 11 of 1953. shortly appellant combined held the two examined before immediately 12,999, trial in cases after his first trial. n ofhis shortly purpose -feated examinations of 4245. This of section assumption Confronted with! the three trials. rests on an Conclusion of; genuine the Prison conflict Director’s de- certificate was government judg psychiatrists, -pied (1) effect because the; ,‘trial judges “imposed” upon appellant es allowed both cross-examination appellant’s! going burden forward with the evi- counsel, judges questioned (2) the' judges permit- the trial an$ dence extensively.4 testify In addi witnesses rather bed Fooks to his own behalf police request con purpose tion several officers testified of his counsel. The cerning appellant’s and demean- demonstrate, actions of this statement is to *4 during preceding explicit and record, or trials and references to the that portions testimony assumption his trials of Fooks’ at on which conclusion rests Appellant read into the record. is incorrect. upon request also testified of his coun necessary evaluating objec- It is short, sel. In these followed tions to purpose understand first the judicial pattern inquiry the normal aof 4245, effect of section and second what necessary disput where is to resolve a actually place during took before and ed fact. hearings. instant Section 4245 was de- Each of the three trial at the signed prescribe procedure a uniform hearings, conclusion of these found that pro for what amounts to a “nunc tunc” appellant legally competent had been determination of a convicted defend- affirmed trial. This court stand competency ant’s mental the time of findings per opinion.5 in a curiam trial where this issue “was not raised by Judge during filed In Baze- determined * * * urged rehearing provides lon it is a is trial.”6 The section hearings, conducted, upon receipt as since the dis- of a certificate from fundamental torted the scheme de- the Director of the Bureau of Prisons special significance certify person two 4. It is of of Prisons shall a con- Judges, upon learning against the District medical that in 1954 that victed of an offense the United experts thought States has been examined the board appellant 18, was not to stand of examiners referred to in title Code, 4241, 1953 had never examined section transcript testimony given there is cause to believe trial, person Drs. allowed Wilson and incompe- that such transcripts during trial, provided to examine the Pirkle tent at the time of his n issue of mental competency a quently recess. Both doctors subse- was not appeared testified that raised and determined before or trial, understood said General shall proceedings during nature of the transmit of the board of ex- being period Record, when he was tried. aminers and the certificate of Di- 224-225, pp. (cases 12,998 240-242 of the Bureau of rector Prisons to the 12,999). Bazelon’s memorandum of the district court wherein clerk aspect not deal with this does the evi- Whereupon was had. conviction dence. hold shall a determine competency stating Bazelon correct in is accused in panel ques- provisions was “silent” on with the accordance section urged above, powers now The reason tions error. and with all points these were neither raised is that granted. In such the cer- therein preserved argued nor nor of the Director of tificate the Bureau of appellate appeal. It is func- shall Prisons evidence of search the record in order an- tion to and conclusions facts there- every argument conceivable swer counsel shall find If the court in. ac- they might have raised if had occurred mentally incompetent cused or if him he considered them trial, the of his court shall vacate error. judgment grant conviction the new Sept. 7, provides: 1949, 535, Added trial. c. of 18 U.S.C. 6. Section 1, 686.” the Director of the “Whenever Bureau Stat. judicial contrary, de- be- stating probable cause controls there mentally incom- termination. prisoner was lieve the petent whom court before when effect, then, The must hold convicted the defendant was compel hearing is a is to in which there in- hearing. purpose of the The sole working incompetency assumption of judicial determina- quiry obtain is to However, competency. rather than compe- prisoner’s “mental tion of the finding justify evidence which would tency” he tried. as of the time produced, “the has “incompetency” test presumption falls out the case. insanity,” “legal to determine used acquire never had the at and cannot “un- the accused but rather whether tribute claimant’s fa of evidence in the proceedings understand the able to vor. Its the result officeis control *** as- properly him or compe where is an entire lack of there * * in his own defense sist Bowers, tent evidence.” Del v. Vecchio required the convic- to vacate court is U.S. S.Ct. grant it finds the trial if a new tion and prisoner 193, 80 L.Ed. 229. “incompe- sense, *5 was, in that is It erroneous to intimate tent” to stand trial. presumption rebuttable created hearing required 4245 section The places upon proof of burden pro “in with to be held accordance is Attorney the United or that it ele 4244.”7 The latter section visions of independent vates the certificate some to court to hold section directs trial evidentiary questions of stature. hearing as to “at which evidence proof who carries the burden of may be of accused mental condition degree probative of force which the cer including .submitted, report that of governed tificate retains as evidence are ing psychiatrist.” no 4244 lends Section foreign concept considerations .support sec the contention that “prima of essary facie evidence.” is unnec hearing be conducted tion 4245 should problems to resolve these as followed than that some manner other rulings point on the in the instant hear judicial proceeding. Section in the usual ings appellant. were favorable to hearing provides 4245 further: “In such court, hearing 13,000, in case oral the Director of the the certificate of argument on the issue of of burden prima facie Prisons shall be Bureau of proof, held be on the burden to the Gov the facts and conclusions evidence of hearing ernment. In the combined therein.” -certified volving 12,999, cases case, Keech “In apparent certificate, declared: the instant It is that the assuming proof even properly burden is as ele considered one upon the Government and that it must ments in a scheme to deter prove sanity defendant’s competency, at mine mental serves several beyond doubt, (1) reasonable represents functions: a medical has court no and finds doubt that the de that there cause mentally at fendant the time of trial was believe incom * * competent tried; (2) United States petent operates v. as when Fooks, D.C.D.C.1955, F.Supp. 533, 132 requires pleading a ing insofar as it a hear part 535. The certificate itself was a mental issue of the record and was called trial; (3) to the court’s the time of it creates a re attention even before the ineompe comm presumption of buttable report tency which, enced.8 The entire of the Board absent evidence hearing court, upon ju- pro- notice and a 7. Section 4244 “formalizes finding.” H.R.Rep. No. dicial 2 persons cedure for accused whose mental- p. Cong.Service 1949, U.S.Code ity suspicion comes raider [before or dur- ing by providing psy- trial] (cases 12,998 for a Record, p. 12,- report examination, (case 13,000). 999); chiatric thereof Springfield Medical On Examiners at the contrary, is clear that the record Center, Springfield, Missouri, incorporat- outset each certificate, accepted ed in the evi- go counsel volunteered to with forward dence in of- both it ivas evidence. Counsel’s at the paraphrased, fered.9 This emphasizes second “If this fact: portions several read may times Your please, preliminarily, Honor I say verbatim hear- opinion, course of bota statute, my that the does ings.10 not indicate who has either the burden going pi*oof. forward the burden of sug quarrel We find no I previous assumed aat held be- gestion challenging party recently fore other of this court going presumption has the burden going the burden of I will- forward. am forward with Western the evidence. See here, to do that if Hon- that is Your Henderson, 1929, & Atlantic R. R. v. desire, or’s but I like to state 639, 642, U.S. 73 L.Ed. S.Ct. objection without or without practice 884. The better in section qualification my being argue able to hearings would be for the District Court proof burden of such formally to have the certificate offered time as it be material.”11 opening upon the and then call produce The record substantiates counsel’s might any, judgment have, evidence he which courts’ proper that it was presumption proceed per would meet or rebut since it was fectly incompetency. procedure apparent everyone en This will *6 compliance Attorney possessed sure technical United with the stat States evi ute. psychiatric However does not follow that dence the form of four ex “deprived” prima just trial, certificate is of its aminations of Fooks facie effect de which whenever there occurs a would tend to meet and rebut viation from the desired norm. In de facie of the certificate. effect termining question to it is Prior to the of commencement the hear ings proceedings Attorney look to the substance of the the United States had as well as to form. appellant’s formed Per counsel that Dr. April retti had examined Fooks in and hearings At judg- the instant the trial May of and had written the United “impose” upon es did not bur- Fooks the Attorney going opinion den of Fooks forward. for Counsel request, Fooks did not at either of the to stand trial. ruling proof. immediately on of order Counsel notified the court12 hearing appel- See, g., Record, pp. 119,135, 260-272, 9. At earlier combined e. (cases 12,998 12,999); lant’s counsel indicated several times that 360-368 Rec- Springfield pp. 44r-45, 53, (case he did ord, 13,000). not intend to offer the 104-108 Report evidence until Record, pp. (case 13,000). 5-6 psychiatrists Springfield competed had following hearing, first At testimony. their On these occasions to court’s refusal vacate Fooks’ sentence Judge Schweinhaut declared he would not prior judicial to a in- determination report. Record, pp. 115-116, admit competency, may counsel “If declared: I (cases 12,998 12,999). 434—439 It is respect pro- address Court to judge obvious made this state- cedure, statute silent as to who report ment because felt he party. moving I is the had reached that testimony not could be used to add to the independently conclusion of consultation report. the doctors who made the Honors, thought with Tour but I I better Thereafter, suggestion Jrdge point.” replied: raise Keech Keech, report the substance of the went consultation, has “There been no I but Record, pp. into the record. 115-125. proper you proceed.” think it judges, however, Both port received the re- (cases Record, p. 12,999). 7 Record, pp. as evidence. 477—478. Springfield Record, 332-333, pp. (ease In the second Report 13,000); (cases 12,- Record, pp. 496, was received when offered as evi- Record, (case 13,000). 12,999). dence. hearings 17(b), was to determine the Rule under and moved this fact U.S.C., sub- time of Fed.Rules Crim.Proc. accomplished trial. even had This was poenas doctors who issue for the finding though appellant signed initiative took the Springfield significant deprived was which in Fooks no sense to believe cause Preliminary the certificate of its technical when tried. motions at effect. held on these argued which conflicting counsel The record could reveals that testimony (of Gov- medical possibly prejudiced have been Springfield and psychiatrists ernment proof order in which the was adduced. square Elizabeths) factual “raises St. issue,” suggestion dissenting state weight “a ment that had Attor United States Subsequently, when the evidence.”13 go ney required “the forward 12,998 in cases the combined might prosecutor called began, counsel reiterated (emphasis added) doctors” seems us very fact the obvious outset ignore the The United States to Attorney record. a flat contradiction involved pre stated that opinion.14 that what- is clear medical pared to rest his case proof ever order very of Dr. clear Perretti. He made it pre- prepared to meet the hearings began before the he did nothing plainer ; sumption than be could Springfield not intend call the doctors as known Perretti’s that Dr. as witnesses.16 Prior giv- Judges, when both counsel any question and before as to the order en, effect of would rebut the proof conceivably could have been the certificate.15 raised, appellant’s counsel advised the necessity” court “that was an absolute suggests Judge Bazelon now subpoenaed that the doctors be “so that does it is reversible error the court they may be examined and cross-exam strictly procedural niceties adhere ined, as Dr. Perretti be.”17 rigid can forms. The most that *7 Clearly “it did not make is Dr. Perretti said for view that this bring to forth Fooks government witnesses and the other witnesses” nor did counsel’s decision to one should have been called first. But no presence request experts have testimony and can read Dr. Perretti’s slightest even relevance the order to any except that, had come to conclusion proof. first, operat it been offered arising We take issue with presumption Bazelon’s from ed to meet the appellant’s unduly object view that counsel was The certificate. sole of these 13. any Record, pp. (case 13,000). available at St. Elizabeths at 333-334 a minutes few notice. p. 12,999). Record, (cases 14. 3 Record, pp. 333, 362, (case 13,000). 367 practical was an additional rea- 15. There permitting appellant proceed to son for Record, pp. (case 13,000). 333-334 It requested. court, appel- The lie appellant who made several motions request, subpoenaed had lant’s requesting Springfield psychia- that these who, examining Springfield after probably doctors appear person. urged Counsel trists reported him incom- Fooks present Dr. Perretti would be that since petent di- tried. The doctors were person depositions Springfield from day appear on the rected to doctors would suffice: Record, (ease 13,000); began. pp. 498, 499, Record, (cases “I think under those circumstances is absolutely necessary They present .12,909). the other wit- as the testimony ready testify. hearing's commenced, record nesses whose to diametrically opposed apparently Springfield psychia- logical will be is suggest appear person do and I to his have been allowed to testi- trists should your absolutely immediately fy it is neces- to Honor that and return to their work. sary hand, come.” Perretti, both of them on the Dr. limited in his examination of thes court-appoint is not held until a psychiatrists. psychiatrist reports His view seems to us to ed the accused overlook the incompetent fact at the combined proceed to hearing (which earlier, longer, yet, compre was the trial. And section 4244 and more testify exhaustive of two hear- hends the accused is to ings) appellant’s permitted hearing. counsel was Report The de House leading questions.18 Indeed, to ask rights if a clares: pro “The are accused’s struck, balance is to Attorney (or provision be tected the added that his her) was limited statements at such shall greater any examination than extent not be admitted in evidence at sub degree appellant.19 any case, sequent In proceeding.”21 (Em criminal phasis of regarded added.) limitation Appellant on examinations cannot be did not lose claiming rights by being as sufficient reason for cross-examined. disregard nothing of a scheme. There is in section 4244 which congressional indicates a limit intent to dissenting The memorandum finds in a defendant’s to direct exam appellant by the examination of his own ination, and there is no rational basis depriv “consequence” counsel another for such a limitation.22 its facie ef appellant fect. The tifying circumstance tes suggestion the United nothing in his own behalf had Attorney’s officedoes not make it prima, do with the certificate’s practice challenge psychiatric early effect. Counsel notified the court pro issued in the section 4244 in the combined simply that he wished cedure tends to show that where testify.20 appellant possesses that officer no information understanding dicating recollection and accused is rep undoubtedly trials was point At this stand trial relevant. he does not attack the Certainly the fact that had been such inaction in one ort.23 administratively adjudged case right incom does not constitute waiver of the Springfield petent in appearance conviction to make a formal in an controlling. congressional The accused other nor in section does it indicate hearing (before trial) psychiatric intent subject is also that the is not “prima prosecutor. facie” since attack In Record, pp. 118-125; ; sentences, 226-234 236- names of names of the ; 253-254; 259-265; 12,- (cases complaining witnesses, etc. 12,999). 998 and *8 Moreover, certainly 23. there is more rea- See, g., Record, pp. 128, 133, 202, e. Attorney’s son the United States 242, 281, 289-290, 447, (cases 12,- appearance office to enter an in a 12,999). 908 and hearing, present one, such as the which (eases involves an individual Record, 12,099). convicted a after jury trial, than in the 4244 situation H.Rep. Cong. No. 2 U.S.Code presumption where the of innocence re- 1949, p. 1928. Service public mains in The stake of force. dissenting The evi- disposition in the and treatment of a- dently have us believe a defendant convicted criminal or then in a felon by psy- declared to of unsound mind be penal by process institution due warrants chiatrists trial is not as the Government’s intervention if for no- by certified reason than to insure that an oth- authorities of unsound mind Prison erroneously erwise valid conviction is not serving a No while sentence. basis for aside on set the untested conclusions of appears. distinction may may doctors who or not be aware of nothing aspects legal unfair 22. There was the cross- of the issues. Even rigorous examination of The Rooks. examination cross-examination very adversary fullest Attorney might sense in both brief con- the United States- exclusively simple ques- almost fined well and con- conclude concerning appellant’s cede tions recollection facie certificate was trials, e., charges, verdicts, i. correct. sug- may fallacy contrary is re- view not basic of a any event, section while gested by su- custodial States the fact quire presence of United pervision adversary-type penal institutions over federal Attorney require an or might De- case, every have been entrusted to fact proceeding in partment Health, Wel- Education the Government allowed that the find- fare. is a coincidence invalidates neither to intervene Attorney supervises for admin- question of ings General doubtful nor raises purposes prosecutors interpretation. istrative both the statutory persons. custodians and the of convicted suggests Bazelon record evi- The discloses substantial being Attorney, a sub the United States findings this, support dence to Attorney General ordinate of view, precludes our reversal. Whether Di (through Prison has rector) effect reached the same this court would have exists substantial doubt issue; is conclusion properly not the this competence about Fooks’ inquiry narrow limits its to the challenging or prohibited from should be judges’ find- whether the trial superiors. resisting The act of supported by evi- substantial Attorney is United States fact that the appellate dence. District like Attorney General of the a subordinate judges, may may expert not be charged duty who, by statute, with psychiatry, but the who collec- former transmitting Director’s Prison tively both watched and the is of the District certificate to Court many days expert witnesses for are Attorney no moment. The action through ju- better able our time-tested forwarding the certificate General process to a sound conclu- dicial reach ministerial; reports purely doctors’ record, are how- sion than we a cold represent approval it does of the con not diligently out. ever we search it clusions nor accord the certificate hearings below, It is evident that the higher significance prima facie than the legislative impairing pur- far from Congress. given character At fully pose, effectuated intent of Con- torney thereby repudi does General gress procedural and form details ate the conviction or confess error. within the broad Attorney action of the General is not a which must latitude be allowed to trial Attorney directive United States thing, fair courts. The essential ing hear- challenging to refrain from substance, as a matter withholding relevant evidence. achieved. public Where the interest dictates Attorney’s controverting BAZELON, Judge, whom Circuit reports, certificate and the EDGERTON, Judge, Chief and WASH- fact the doctors and the United INGTON, Circuit concur: On technically July 12, are both sub deter- court affirmed Department of the Justice ordinates made minations the District Court in preclude should ap- intervention. The under 18 U.S.C. *9 Director “Whenever the of the Bureau aminers and the certificate the Direc- of certify person of shall Prisons Bureau of the of to the clerk tor Prisons of an offense convicted the district court convic- United of the wherein the by Whereupon has been examined shall the board tion was had. the court 18, of examiners referred to in hold a determine the title mental Code, 4241, competency United States section of the accused in accordance probable provisions above, there of 4244 cause believe with the section person mentally powers grant- such all incom with therein petent provided trial, of Ms time In of the ed. competency of mental the issue of the Bureau of was not Director Prisons shall during raised and determined before or evidence of the facts Attorney trial, said General shall certified If the and conclusions therein. report transmit board of find that ex- shall the accused was men- court 638

pellant mentally dur- conclusions If the been therein.” ing separate court tally convictions finds trials and “that was men- accused This, we so far at the his trial” time of find, appellate able to consid- statute first directs the to “vacate judgment grant proceeding stat- eration of a under that of conviction and timely Appellant’s petition for re- new ute. hearing trial.” in banc was denied this court 4241, Under § the board examiners of 1957, 28, upon March of five on vote only “alleged prisoners examines to be grant. deny Each four to past insane.” The board’s as to right judge a state- reserved the file only mental condition is thus formulated ment of state be- his views. We ours in connection with its determination of we action cause think court’s defeats prisoner’s present As condition. con- purpose of a statute vital to the fair Prisons, strued the Director of 4245 § justice. administration of criminal only applies prisoners who are fact opinion of the court is silent on serious presently According found insane. relating questions procedural re- statement, upon by his relied both the quirements of Nor do think § 4245. we Reports legis- House and Senate questions in the statement are met lation, applies “any person who, § today by our filed brethren voted during sentence, service of is certified against rehearing. by prison authorities to be unsound of probably mind and that such condition designed Section to cover the * * * existed time preexisting incompe- case “where tency * * * trial.”4 Thus only itself manifests commit- comes to an with ad- § applies, under ment terms, sentence.”2 It finding presently, ministrative that he is where “the issue mental probably was when of unsound competency was raised and deter- * * * mind. mined or before provides Appellant trial.”3 that whenever convicted of three of- Director of the Bureau of Prisons before fenses three different April, certifies that inmate has been in June and October 1953. Be- “by examined board examiners the first fore * * * referred to section made and withdrew a motion for a men- and that is person there cause to tal examination. No such be- motions were lieve that such in- made either side or dur- competent * ing time his trial trials. the issue Hence * * shall General of mental was not “deter- during” any transmit the board of mined before exam- trials requirements fully iners and the * * * 4245 are certificate of the Director applicable. to the clerk of the district court wherein the conviction was had.” brought Appellant’s sepa- convictions directs statute the court to hold a aggregat- sentences, rate and consecutive hearing governed by provisions years, 13 to which he commenced serving May 1953, and makes Director’s certificate after the first con- “prima 4, 1954, facie evidence of the On November facts and viction. the At- tally incompetent Oong.Service trial, pp. 2 4. U.S.Code judgment emphasis supplied. court shall vacate grant conviction new trial.” of the offenses were Two assaults *10 Reports Legis- 2. House Senate on. the rape to commit intent the other was lation, Oong.Service 1949, 2 U.S.Code dangerous weapon. with a assault All 1928. allegedly three committed within a period. thirty-day that issue is 3. Where raised before oi dur- ing trial, disposed it of under § Dis- serve his torney sentences rather transmitted than be declared General mpetent,6 inco pre Direc- of the the certificate he could trict Court not there vent the Director of of Prisons the Bureau Bureau of Pris tor of ap- discharging ons from statutory duty cause to believe was mentally proceedings. They institute these pellant was was were instituted his trial. board’s transmission of time of expressly incorporated the Director’s Director’s certificate to the District therefore, certificate, Government, Fooks, Court. The not certificate. facts stituted “prima of the them. facie evidence There was thus no case was Among report. for Fooks to make in the and no and conclusions” burden of proof for the fol- him and conclusions are facts to bear. If those lowing: appellant facie effect of the was received certificate was to be overcome, Penitentiary upon Atlanta on Jan- Federal uary had to be showing 20, 1954, placed seeking and was made to over come it. ever, neuropsychiatric hos- In below, of the both ward how 11, this basic pital weeks later. On March two scheme of the statute was diag- psychiatric prison’s board overlooked. paranoid as schizo- his condition nosed Ignoring the fact that psychotic phrenia, him as General institutes pro these Medical his transfer to the recommended ceedings, the Assistant United States Springfield. The board stated: Center Attorney assumed that Fooks was the opinion unanimous of the was the “It moving party. He declared at the hear psychiatric board that members Judge po “I Letts: take the psychotic years.” for several he has been sition that the movant has the burden of April trans- On proof proceeding and this pro is not a diag- Springfield, where the ferred ceeding which moved; the Government confirmed. made at Atlanta was nosis Among is, certainly my office.” symptoms observed were “de- proof Letts ruled burden of auditory persecution, lusions and vis- on the Government. Keech held organiz- difficulty hallucinations, ual proof that the burden of was on Fooks ing thoughts, inability at times to dis- and that was a “severe burden.” Unit tinguish fantasy reality, im- between Fooks, ed States v. D.C.D.C.1955,132 F. insight judgment.” paired The Supp. 533, 535. What held in this expressed Springfield board regard by Judge Schweinhaut, who sat patient chronically “this has been Judge Keech, not disclosed eight years.” ill for almost record. All imposed upon going Fooks the burden ambiguity forward. Whatever there Judge Keech, indeed, thing considered the case is clear: one brought by as one Fooks under 28 U.S. prison- case that the makes 2255. He C. said: mentally incompetent er implements “Therefore, treating The statute present tried. policy sound person punished proceeding should be that no as a motion to vacate fairly judgment not been has tried and the ground con- and sentence on the policy, That is the victed. Government’s incompetency of mental preferred Fooks’. if Even Fooks the defendant at trial, the time of ing, counsel, shows that The record his trial with the approval, court’s proceed to kill threatened his counsel Fooks undertook the movant. insanity. raised he protest counsel’s Neither failure the movant’s role at the first earlier two At apparent hearing, acquiscence nor his court-appointed requested counsel Fooks’ second, it at should influence our con- ruling proof accepted on order of objection ruling pro- basic struction elements of the that he without as the movant. At the later hear- statute. ceed *11 deny the Id., will the motion.” permitted swers. Fooks’ counsel to pages they 536-537. elicit from them the facts could by claim to know at first hand their challenge to At both the own background observation. ma- Department prima facie effect of the the terial reports which went into the incor- of- of Justice certificate came porated certificate, consisting of Attorney. Had fice of the United findings the psychiatrists and observations of out, the intent of 4245 been carried § and nurses on the required, if officewould have been staff, by application excluded literal prima facie it wished to overcome the of narrow rules of evidence. At bring by certificate, case made Judge Letts, before Fooks’ coun- forward evidence sufficient overcome sel was leading not even allowed to use might prosecutor it. The have cs.lled questions examining the witnesses. reports prison doctors whose formed the prosecu- If consequence basis of the certificate. Another denying of doctors, they prima tor had called the certificate its facie effect was that witnesses, Fooks, prima have been and if normal his who was incompe- facie applied, by rules were he would been tent have of virtue 4245 and § the admin- finding to treat them as hostile wit- Department forbidden istrative of Justice, have nesses and Fooks’ counsel would by judges allowed leading permitted ques- ask court-appointed them his counsel to take the judges deprived subjected tions. But the district stand and be to cross-examina- effect,8 prima prosecutor. of its the certificate facie tion Our brethren bring for Fooks and made who voted rehearing in banc Although forward witnesses. wit- improper think not for the prosecutor prima nesses and the were fellow- of the incompetent facie to be employees Department Justice, proceeding. taken ain They say prosecutor cross-examined as them proceeding accused in a 4244 is also they witnesses, prima had been incompetent10 if hostile de- facie and that the manding unqualified answers, comprehends and accus- latter statute that he is ing listening ques- testify them of not to his hearing. Although at his our giving unresponsive point tions an- brethren to a following colloquy days 8. Note the between the of resistance and after all the other prosecutor in, and one of tlie e.t Spring- evidence was field even admitted the hearings. report earlier of the two into evidence. * * * “Mr. TrOxell: I feel that this day provision provides filing On the last [§ 4245] Judge Letts, Fooks certificate which is no became more than ill and “dis- ordinary pleading any proceed- turbed” an case. balance ings, up pleadings ruling, in a “The are evi court’s case no-: had to be conducted dence at the time trial. This absence. certifi His counsel merely necessity purpose presence waived the cate serves creat dur- ing making stipulation of a a forum. as to cer- “Judge tain argu- evidence and Schweinhaut: Which is what the final ments. we are. right. Troxell: That “Mr. It think We there is a difference between a forum to make a creates determiration reported by psychia- an trist tion accused who is regarding the issues raised the certifi- after an examina- and the certificate in and cate of itself provided by merely prisoner as § 4244 is not evidence. sets the machinery just operation, the Director of an Bureau indict- of Prisons under machinery prosecution § 4245. Section 4244 ment sets provides psychiatrist’s report certainly the in—and indictment is not “may be submitted” in evidence. It does evidenee- provide “Judge not that he is Schweinhaut: do I facie incom- petent any says about doubt that.” he is incom- petent. very It was until end of that certified under § two incompetent. after five 4245 is *12 referring ance with” what Con Report indicates § House § gress hearing,” aware, intended. as we are such So far “statements at accused’s psychia either under 4244 after a § that § be said think it cannot we language appointed by reported any di- trist court has 4245 contains 4244 or § incompetent, indirectly providing the tes- rectly accused is incompetent. has never United States no at timony makes of an give tempt proceedings an ad 4244 authorizes held that § versary testimony proceeding under character. The same is true of and no proceedings inquirendo de our attention lunático held has come to statute testimony under We D.C.Code 21-310. The admitted. § which such incompetent proceedings wheth- “be reconsider court should think the court, comes a permits ward of the under the fa it. er § paerns patriae.” miliar doctrine of decisions below11 Two of Treibly, 1945, U.S.App. Overholser v. effect, were, burden that even if the 389, 392, D.C. 147 F.2d 708. Similar beyond prove on the Government considerations un dictate that men- Fooks was a reasonable doubt that procedure der 4245 be held under some tally competent there he was when different from now countenanced ample bur- to sustain that evidence exposition the court. We think agrees with This court’s decision den. required procedure should await re deciding measure what that view without hearing question. addressed whom, required, proof Judge: FAHY, I for a Circuit voted through procedure. what Whether rehearing banc, en and am fortified in sufficient, by any reasona- evidence was bly acceptable having analysis done so sup- proof, standard of problem contained in Bazelon’s finding competence, port of mental statement now filed. not, doubtful. But that doubt rehearing view, our call for a in banc. rehearing in banc We voted for because assump- decision rests on the Congress court’s (1) tions that intended ju- be the usual any adversary type, dicial conducted like proceeding; (2) that, despite certificate, prison-

facie effect of the be

er treated the movant and be re- quired prove incompetent Mayme RILEY, J. Parcel Lot tried; (3) representative that a Square 590,Appellant, Department of Justice treat as v. representatives hostile witnesses other DISTRICT OF COLUMBIA REDEVEL- Department; (4) of that that the AGENCY,Appellee. OPMENT LAND of a No. 12782. purpose determining be taken for the past competency. Appeals United States Court of District of Columbia Circuit. A certification the Director of the Reargued Sept. 25, 1956. Bureau of Prisons probably mentally incompetent April 22, Decided is, course, not conclu- sive. It does not follow that the to be held on the should ordinary adversary type. The re- quirement that the be “in accord- 11. The exact basis of Schweinhaut’sdecisionis not clear from the record.