Robert v. Bruce v. W. J. Estelle, Director, Texas Department of Corrections
483 F.2d 1031
5th Cir.
1973
Check Treatment

*3 WISDOM, prejudice Before GEWIN and COLE- dismiss the writ without MAN, Judges. Circuit reapply he for relief Bruce so could recognized early legal 1. It was our histo 937, F. 940 United 97 ry that: Justice, 1899) (opinion Circuit then memory If a man in his sound commits Judge Lurton). v. States United See capital offense, arraign- and before his (O.C.S.D.Ala. Chisolm, 284, 149 F. 289-290 absolutely mad, ment he becomes stated: where the court ought arraigned law to be humanity no is such that of the law [T]he frenzy, prison such un- but be remitted to sub- man considered incapacity til The rea- ject be removed. prosecution, of whose is, advisedly plead son because he cannot fairly rationally ability a de- make just indictment. . . if ground . And reasonable is fense there person memory such judge nonsane doubt in the minds of the plea, and before his of non- passes become issue. on that memory, tried; or, sane he shall not be 375, Robinson, Pate v. 86 S. if, after his nonsane becomes of Dusky (1966) ; 15 L.Ed.2d 815 Ct. memory, judgment, he shall not receive States, 362 80 S.Ct. 4 U.S. or, judgment if after of non- becomes (1960) Bishop L.Ed.2d 824 memory, sane execution shall L. 100 350 76 S.Ct. U.S. spared; memory, for were he of sound App. Allen, (1956) ; Ed. Sanders might allege stay judg- somewhat 307, 100 D.C. ment or execution. (Tex.Cr. Hale, History State, 3. Bruce v. the Pleas 402 S.W.2d Crown, Youtsey App.1966). (1736), 34-35 cited February pro- in which he was they On Holbrook. convicted nounced him insane and classified Personality disease “Paranoid Accordingly, sought relief from Bruce Disorder, Severe, Chronic.” On March convicting The state court. grand jury 1, 1965 the no-billed the case empaneled jury full and after a lunacy and Bruce was held for a com- testimony in which extensive days later, mitment. Two the Probate presented, returned a ver- County Court of Dallas concluded that competent dict that Bruce had been “ordered, Bruce insane ad- for the murder of his judged (Bruce) and decreed that Adopting findings wife. hereby adjudged mentally ill and re- jury, court denied relief quires observation treatment and/or appeal the Tex- 1969. On for his own welfare Appeals as Criminal Court of affirmed protection protection others,” or the without and Bruce instituted involuntarily and ordered him *4 committed petition instant in the United States Terrell Hospital, to an State institution District Court. The United Dis- States mentally for the treatment of the ill. competen- trict Court concluded that the nothing There in the record to indi- cy fairly by issue was resolved cate that this determination has ever petition. court and dismissed After been set aside. a careful review of the court record, we remand district admission, Bruce, Soon after aided for further consistent with by obtained from the counsel, a release opinion. this Brown, hospital “Doctor” alias Reid subsequently Brant, Freddie who was

I imposter to determined be an and was practicing perjury med- convicted of place In order to case He icine without a recorded license. perspective necessary it is to forth a set undisputed years sentence of five under was a detailed statement of the charge. perjury May 6, On indicated, facts. As earlier facts voluntarily Bruce committed to himself bizarre, are During novel and most unusual. escaped. Hospital Terrell later but State specifical- season, the Christmas that he authorities were advised ly 22, 1964, on December Bruce killed longer hospital was no to confined wife, the mother of his three chil- grand jury May and on indicted dren, shooting pistol. her with a him for the murder of his wife. After his arrest and while the Dallas County attempted Jail Bruce take to this had Bruce Counsel who served own It is life. now admitted that point, McNicholas, dismissed Mr. was supports the conclusion that he apparently that because insisted was sane at the time of the homicide. insanity plea Bruce enter a charge Shortly against An- thereafter, January him. on defense attorney, Snodgrass, grand em- other was convened in- Mr. understanding apparent vestigate ployed with the the case. Private counsel was would father and Bruce retained that both the and Bruce was examined insanity plea permit two not because psychiatrists, Dr. Pickard and Dr. cy Texas, Bruce Trial Sw.L.J. Stand F.2d 212 Our vacation and remand of case was based on the conclusion that remedies, “is that Bruce Bruce had Both doctors concluded exhausted all his state likely, illness, cause his mental Texas had because of enacted a new re- procedure injury provided immedi- lief himself or others if not a full which ately hearing that Dr. stated restrained.” Holbrook See on contested issues fact. hospi- psychiatric “long 11.07, Bruce term Art. needed Vernon’s Ann.Texas Code of Competen- Figari, Criminal talization.” Procedure. that Bruce was plea reflect examination competent records “would that such was felt September, He was convicted children.” on his September 1965.’ malice on murder with year sen- of that Hugh 1965 and October (not to Dr. Brown be confused imprisonment. tenced life physician Brown), with Reid superintendent Terrell post-conviction former State At on two Hospital, interviewed Bruce dif- Bruce was to determine April ferent occasions witness- competent trial several Snodgrass He also had access Attorney who 1969. appeared. es analyzed. records he studied murder represented Bruce at professional opinion that It was his instruct- strongly he was indicated that competent insanity. time of not at the Bruce was defense ed not to use the Tauber, Snodgrass his murder trial.7 Dr. another Although “believed” Mr. physician employed at Terrell Hos- to communicate Bruce able physically pital, Bruce defense, he did examined in his assist period neurologically weeks occasions over six different two state during beginning February He saw emotional became the trial Bruce daily period. period Bruce Talbot, Dr. each for a short erratic and psychologist consulting Ter- Snodgrass he was felt time Mr. Hospital, administered five rell State psychological competent him. There to assist to Bruce. Taub- testimony occasions tests Dr. on these some er conferred with Talbot and also Dr. to bind judge threatened *5 and the treatment persisted examined the records gag in emotional if he Bruce to supported con- administered Bruce while he was its The state outbursts. patient hospital. the It Dr. was the testimo- with tention Grig- not Tauber’s conclusion that Bruce was witness, Dr. only ny other one Sep- mentally competent trial in he inter- Grigson testified Dr. son. the trial was Dallas tember 1965 when hour in the for viewed Bruce Attorney February conducted.9 McNicholas ex- 4, 1969 County Jail opinion pressed Bruce was un- an the interview and from that concluded opinion part though in instru- 8. Dr. Brown based his father was Bruce’s 6. Even following preventing an in- the factors: the assertion in (a) long history principally sanity defense, re- of mental diffi- Bruce’s had been he discharge including having sponsible medical culties his Bruce committed for Corps. from the Marine his arrest. Terrell after surrounding (b) the The traumatic events Grigson During Dr. hour interview 7. the one homicide of his wife. gave examination. status Bruce recalling any (c) difficulty in Bruce’s during Grigson interview the Dr. stated that following events his in 1965. arrest mannerisms, displayed abnormal Bruce no jail (d) attempted fol- His suicide while intelligently responded logically, and talked lowing original his his arrest for wife’s During questions. Bruce interview the murder. Grigson he often talked told Dr. during (e) given Bruce The medication Grigson how- concluded deceased Dr. wife. in 1965. his commitment to Terrell “faking” did since he ever that Bruce was report professed In his written hallucination to his not react associated Dr. Tauber stated: side effects evince during opinion gained my professional In with hallucinations. evaluations, Grigson many psychiatric I believe Dr. however On cross-examination of the of- con- sane at the time Bruce that he was with admitted that his discussion (murder cerning sur- fense on December events and circumstances only Amytal he de- rounding a few on 3-14-69 Under Sodium trial lasted the 1965 and he accident dur- as an conduct scribed the incident Bruce’s moments. Other than sorry extremely guilty Grigson interview, ing as well feels Dr. hour the one gained the specific underlying gave I also about this occurrance. reasons no very during opinion opinion that he was emotional “sane” that Bruce was during trial unstable 1965 trial. competent effectively that Bruce was communicate able to adopted incompetent in a The state court to assist him and was findings jury he proceeding and denied relief. attorney. fa- court reviewed The district the record of Bruce’s Bruce’s served as history long of aberra- and conclud- ther described early commencing ed that Bruce had a full and been tional behavior continuing throughout insanity, fair on the issue of childhood the evidence adduced at adult life. proceeding supported the conclusion that of the Marine medical records The fully capable Bruce had sane and experienced Corps reflect that Bruce standing now review 1965. We he while emotional trouble rather severe these correctness of conclusions. one time At an enlisted man. served as drinking a rifle seized he while where commandeered barracks II quartered. He of marines were number analysis Our commences with finally other marines six subdued elementary observation that con required indicates that the record transport legally viction accused while six fellow marines hospital.10 incompetent process.11 violates due The contours of this fundamental evidence, presentation of all the After concluding delineated returned a verdict Dus- gan difficulty drinking appears cocktails. He he had had states It that he following about 3 or 4 and returned and I am of the to the barracks anything capable and does in assist- not remember sufficiently. story left the friends house. The is as [sic] his own defence patient very strong possibility the bar- follows: went There is a killing very triggered racks as- and became hostile and stress emotional incarceration, together saultive and M-l rifle and his with the aid of his of his wife complete rejection charge took he received from command with the space family, together Marine Barracks the short children and his wife’s *6 trial, minutes, activated about 20 until he was subdued with the excitement of the present already illness then about 6 Marines. He was taken to his pro- dispensary again (schizophrenia) main more where he became to become very obscene, combative, disabling and him that time. assaultive nounced Therefore, at pugnacious bring requiring suf- I assume that he Marines to would hospital. symptoms his illness and . fered from of drinking patient began 4. On and insane the time of the 2-8-52 that he was During Amytal inter- on 2-9-52 drank more and became some Sodium extremely psychiat- assaultive, obscene, all destructive view on 3-14-69 and belligerent grams pronounced requiring ric had dif- about 60 [s] examination amytal describing trial, he al- of sodium On ficulties in within hours. spontaneous recovery. ways in A outbursts 2-11-52 he had talked about emotional crying careful this case courtroom and admitted some consideration of being us entire staff of this has caused confused. psy- to conclude that this was an extreme history 10. Entries in Bruce’s medical con- chopathic episode long in a behavior life military particu- discharge tained his are problem. larly revealing sur- on the traumatic events Bishop States, rounding early years: his United year (1956). quit “The trial 3rd S.Ct. 100 L.Ed. 835 Patient school mentally person high age and conviction of a 19 because [of] school at the physically incapable making arguments expelled a defense vi because of jus principles grades olates certain immutable with a male teacher. His very poor a free had tice inhere in the idea of and he failed one time. Pie App.D. government.” Allen, very Sanders little interest school. judgment insight nil. His His are C. intelligence is dull normal. patient 3. The some firends went to evening house on the of 12-11-51 be- argue ky States,12 any attempt where the Court Thus to that an in- determining competent men- his held that the test for defendant has waived right incompetency to tal to stand trial is: assert post-conviction proceeding to' stand trial in a will has suffi- defendant] whether [the generally If a can fail. defendant present ability cient to consult with present objective fol- sufficient evidence degree lawyer his awith reasonable lowing his trial which necessitates understanding whether rational —and hearing to determine he was factual a rational as well as has competent naturally it follows understanding presented enough he has to evidence against him.13 argument present- overcome waiver legal case, however, As is often the government.16 ed principle explicated not is an ease previously have enunciat We present attempted procedures when are proper procedure ed the for a district right recognized. to effectuate the thus this circuit to follow when problem This further accentuated attempts by incarcerated felon a writ of attempts present compe- when tency challenge long corpus prove in habeas he was after the trial as competent at the time of trial as fol the instant case. lows: attempted This court has prisoner, . when a either state provide meaningful procedure for de seeking federal, post-conviction or re termining competency stand asserts, lief, with substantial facts subsequent hearing. We up allegation, back his that at recognized have such defenses mentally he was com normally presented at the trial petent and that there Nonetheless, itself.14 precise was no resolution issue that, has held tried, before he convicted contradictory argue t is that a [I] sentenced, protection of the Four may incompetent, defendant teenth Amendment to the Constitution yet knowingly intelligently “waive” requires that such conviction and sen to have the court determine upon unless ade tence be set aside quate hearing capacity trial.15 it is that he was shown 12. 362 petitioner U.S. 80 S.Ct. automatically L.Ed.2d 824 16. A is not entitled (1960) ; Swinney States, see also incompetency. United to a 1970) ; 422 F.2d Blake v. pe He must set forth sufficient facts United properly tition from which the court can de 1969) (en banc). termine there is a need for such Meadows v. *7 402, 13. 362 U.S 80 S.Ct. at 788. prior (5th 1960) (alleged 282 F.2d 942 Cir. 554, (5th Beto, 14. Clark v. 359 F.2d 557 illness) ; Praylow States, mental v. United 1966). Cir. (sentencing (5th 1962) 298 F.2d 792 Cir. psychiatric court recommended a treatment 384, Robinson, 375, 15. Pate v. 383 86 U.S. sentencing) Bogart ; the time of de Yan 836, 841, S.Ct. 15 L.Ed.2d 815 (5th States, 583, v. United 305 F.2d 588 “This constitutional cannot be waived 1962) (psychiatric report following Cir. by incompetent by guilty plea the or other- — post judgment suggested mental examination protected by wise —and thus ade- it must be illness) ; States, F. Callahan v. United quate procedures.” v. state Carroll (5th 1961) (prior escape a 2d 79 from Cir. 1065, (5th 1970). 421 F.2d Cir. institution) ; Alexander Floyd States, also v. 365 F.2d United (under States, (5th 1961) 290 F.2d Cir. (5th 1966) ; Cir. Johnson United trial). Al influence of narcotics States, (5th 344 F.2d Cir. though prisoners these eases involve federal Taylor States, 282 F.2d 22-23 prevail the same burdens when (8th 1960) ; Cir. Nelms v. United corpus prisoner state habeas seeks federal 1963) ; 152-153 in the circumstances disclosed the record Smith v. United in the instant case. mentally competent trial.17 competency tioner’s to stand trial duty the murder of his wife in

it will be to decide wheth trial court ... fully ap the district court Since hearing adequate er it can conduct an proved the critical facts in the found prisoner’s] on the [the proceedings essentially state we are re competency .... to stand viewing court’s determinat state cannot, under the obli it it will If Sain, ions.19 In Townsend judgment gation aside the set (1963), 83 S.Ct. 9 L.Ed.2d 770 the case to the and remand conviction Court articulated the stand trial at which courts for a new state applied by ards to be a federal district open will, course, to [the it time deciding court whether a de novo hearing adequate prisoner] have hearing granted should be to state capacity to stand on his then corpus petitioners. habeas The Court trial.18 hearing granted held that a new must be sum, must deter- In court district appears if “for reason it hearing meaningful can mine whether trier of state fact did not afford the ha If threshold is- be conducted at all. applicant beas a full and fair fact affirmative, in the can be answered sue hearing.” duty Thus, it is the of a hearing at which then a should ensue initially federal court to review state present sides can evidence both proceedings purpose court for the of re the ultimate issue of to stand solving they conducted in fairly- a manner adduce the facts sur rounding petitioner’s claims Ill Under the unusual facts and circum- only feelWe two issues raised stances disclosed petitioner need be resolved for a escape state court we cannot disposition First, of this case. on the court district conclusion us, regard. basis the record before can it be erred in this We limit our deci- meaningful concluded determina- sion to such facts and circumstances. pro competen- tion nunc tunc Bruce’s adopted Since the lower effect cy may him? findings accorded proceed- of the state habeas Second, assuming hearing ing, such implicitly proce- held that conducted, could be does record of employed dures there were consistent proceedings support the conclu- with a fair and full ascertainment sion that Bruce was afforded such a proceed- Our facts. review of the state meaningful hearing? It is our consid- opposite leads us conclusion. though ered that even mean- There are several reasons our conclu- ingful hearing might have been conduct- proceeding sion that did prior competen- ed to determine Bruce’s requisite meet the standard of a full and cy meaningful the events and circum- Although each surrounding hearing stances surrounding might factor not be suffi- meaning- were of such a nature that isolation, cient when viewed in when the proceeding complete- fulness of that whole, state record is scrutinized as a ly compelled vitiated. areWe thus prejudicial impact the inherent full, remand to the district for a signifi- proceeding full hopefully peti- fair and final cance. *8 Alabama, 97, (5th 17. Lee v. 313, 386 F.2d 105 20. 372 U.S. at 83 S.Ct. at 757. 1967) (en bane) (emphasis added). Cir. 2254(d) (1970); 21. See 28 U.S.C. § O’Neal Smith, 18. Id. at 269, (5th 1969). 108. v. 413 F.2d 270 Cir. 1065, (5th 19. Carroll v. 421 F.2d 1066 1970). Cir.

1039 relevant is both material and the Issues A. of Confusion dealing with When the contested issues. before Bruce was competency of fact the trier issue 24, 1969. state “present petitioner’s on a needs evidence ability empaneled determine lawyer with a to consult with pro- of In issues fact. contested ceeding, degree under- rational of reasonable required however, was standing” has ra- and “whether is- factual controverted to resolve three understanding well factual tional as responsibil- first, criminal Bruce’s sues: 23 against At him.” 1964; ity murder of his wife for the interrogation proceeding, the competency second, his mental equivocal on the so was ambivalent compe- 1965; third, determina- competency, issue hearing. pending tency Thus mean- was tion of Bruce’s easy assignment jury’s not an ingless.24 considering had fact that one conflicting expert lay and testi- resolve Prejudicial Comments B. mony mental faculties on three distinct both time and circumstance. of Bruce Conflicting expert testimony lay Moreover, the court record presented distinct reveals that these issues Hugh Drs. Brown and Tauber concluded separate kept inter and were often that Bruce time of was “insane” at the have resulted in con mixed which must Grigson his state while con- Dr. jurors. Both fusion the minds Attorney cluded was “sane.” responsibility mental com McNicholas felt that Bruce was “insane” petency involve issues attempted such a assert defense surrounding perception envi one’s Attorney for his former client while ability ronment, en to that relate Snodgrass was convinced that Bruce had vironment, and his reactions what only been “sane.” The to the evidence perceived. authorities The cases and contrary testimony Attorney was the ques repeatedly have tioning noted that when limiting Snodgrass, who under served lay expert concern witnesses from instructions Bruce's father and the ing competency to an individual’s mental Grigson only spent of Dr. who questioner ex should be jail. hour with Bruce while in act in examination in order that the evidence, In view of nature light may be shed on the crucial a serious factor which accentuated compose intelligent factors which potential highly for unfairness competency determination.22 inflammatory prejudicial comments Any closing arguments of a factual con of resolution counsel’s testimony troversy requires jury. In rhetoric reminiscent of evidence Wiman, 257, ; 1965) States, v. F.2d 265 See Lee 280 Wolcott v. United 407 F.2d States, (5th 1960) 1149, (10th ; 1969) ; v. Cir. Johnson United 1151 v. Cir. Arnold 1965) ; 401, (5th States, 871, (10th 344 13 F.2d 406 n. Cir. 432 United F.2d 874 Cir. 376, Floyd States, 368, 1970) ; Oliver, Remarks, Recogniz F.2d v. United 365 Panel on (5th 1966) ; Competency Determining 9 v. n. Mims United Cir. Mental 1967) ; 135, (5th Defense, States, Insanity Cir. F. 375 F.2d 142 Stand as a 37 Trial - (5th 466, Matthews, Alabama, 155, (1964) ; Lee v. 406 F.2d 471-472 R. D. 158-160 Men (en banc) Law, 1969) ; Disability v. Featherston Cir. tal Criminal 83-87 1969) ; (5th Mitchell, 582, (1970). 418 584 Cir. F.2d 63, (5th Floyd States, F.2d 65 v. United States, 402, Dusky v. United Tay Cir. also United States (1960). 788, Ct. S. L.Ed.2d 1971) ; lor, (4th Cir. F.2d 375-376 deciding This factors States, was one Holt v. United Dusky (7th Feguer reversal 1964) ; Court’s Cir. S.Ct. U.S. Noble 302 F.2d 4 L.Ed.2d 824 Sigler, 676-677 *9 1040 competent in 1965 Bruce was er warned counsel drama state a television trial. jury that: probably infect- comments most These right suggest he’s [Bruce] now I thinking, decision-making process of they ed the whole have al- knows that jury. that Bruce already knew counsel in ’64

ready sane he was said assertion retried could be jury you insane now, find sane said erroneous. goes could not was that he trial, he the time of free. cannot you diatribes irrelevant Such knows, because what That’s countenanced.25 in a mental incarcerate can’t that he knows think he I a sane man. mindful of fact areWe again. I think tried can’t be courts not sit as federal courts do have faded memories knows pris appeals a state when errors of the in- dissipated in has the evidence corpus.26 At federal habeas oner seeks tervening years. four ignore re time, our cannot the same we It’s he knows. I think That’s what sponsibility an accused insure that something very attempt put clever jury. impartial an fair trial obtains gets jurors you to where over on reiterated has As the having life, prison done out of again, of calm time and “[e]xercise a life sentence ju- judgment by [sic] . . . [a informed mur- County of crime Dallas ry’s] en- is essential to members 27 der malice. Highly prejudicial forcement of law.” prosecutor jeop- by the uttered remarks your county. do what You can This is processes jury’s deliberative ardize you arbiters You’re the want to. infringe upon accused’s an you and hence county. goes inon this what If on the merits to a fair your walking streets want him out; the case.28 go you let him county, ahead and him insane find Improper C. Standard effectively let you trial and will have you prison. what him out That’s Finally, perhaps im most facing your in this decision are portant all, reason there is another [Emphasis added] why must remanded to case emotional, prejudi- ap for an erroneous United States District Court Such place dispas- hearing. propriate cial have no in a instruc comments given by resolution of the wheth- sionate the state habeas court at tions protections type person may danger- 25. “Constitutional are wlio re- good people justifies bad, [Njothing served for . and denied to ous. judge . . competence they go by warning jury that, nor does if ac- quit accused, they releasing charged the board because the crime is seri- will be Tyler dangerous prey upon 993, society. ous.” 391 1003 man to F.2d (5th 1968) States, U.S.App.D.C. (Godbold, dissenting). Cir. Blunt v. United 100 J. 266, Although Wainwright, 355, (1957). See also McDonald v. 466 F.2d posture present Cir. Hall case is not 1969) ; existing Blunt, same F.2d 582 as that these obser- Unit- equally D’anna, applicable preju- ed States v. 450 F.2d vations are (2d 1971) ; Jenkins, dicial conduct at Bruce’s state States U.S.App.D.C. Burgett Texas, 109, 120, 389 U.S. (1970). Judge Chief Bazelon has noted (1967) (Har- S.Ct. L.Ed.2d 319 that: lan, dissenting). J. insanity When the defense of has been Louisiana, 466, 472, properly 27. Turner v. invoked, requires proof 379 U.S. the law 546, 549, (1965) beyond 85 S.Ct. 13 L.Ed.2d 424 a reasonable doubt the ac- citing Sinclair v. United 279 U.S. cused was sane at the time of the offense 749, 765, (1929). 49 S.Ct. 73 L.Ed. 938 charged. ap- It will not countenance peal upon to a conviction Gladden, Parker v. Cf. ground that, insane, if even he was he is 17 L.Ed.2d 420 S.Ct. *10 hearing post-conviction the state competency standard to determine to ambigu- although brief, Again and somewhat emphasize stand trial. we that ous, the appropriate seem to indicate that required by the standard the controlling M’Naghten rule v/as the federal constitution is set forth with competency to simple clarity standard determine to Dusky in supra: necessary us stand trial.29 It is not to the reach the whether . whether he [the defendant] of the should or should not use Texas present ability has sufficient to con- M’Naghten rule to determine lawyer sult with his with a reasonable alleged responsibility at the time of the degree understanding of rational —and Apparently crime. the Texas such was whether he has a rational well as as rule at the time of the understanding proceed- factual of the hearing September However, in against ings him. we are firm the conclusion the that M’Naghten 362 U.S. at rule a 80 S.Ct. at cannot used as by proceedings taking place, mentally 29. The instructions the are the and set in full unable forth to and below: consult advise his at- with torney defendant, Bruce, degree is and with others Robert Vernon with that presently understanding of ly competent under a sen- as to incarcerated life render him mental- tence, having felony defense, make a convicted of the to rational has, charges against if he criminal offense aforethought. murder the of with malice him. sanity present insanity the is On issue The issue of defendant, you properly upon before the this Court a Writ are instructed that law requires Corpus. jury of a Habeas find and state its every person You are is verdict whether sane instructed that the defendant is or presumed sane, is, to be insane at the of this if of sound and the memory contrary jury presently and finds discretion until the the defendant to be insane, by then, proof, is shall and shown and the burden of the find proof, upon insanity, in its as verdict re- is the the defendant defend- prove quires hospitalization insanity, hospital any, ant if in a his mental preponderance is, protection evidence, or the of own welfare and greater protection weight of of credible testi- others. mony. If the defendant finds presently you insane, You are find further shall instructed that under. then person your defend- law no for a verdict whether can tried requires hospitalization in a criminal offense in a insan- ant while state of ity. protec- hospital for his own welfare protection upon present This is a trial or the issue of tion of others. foregoing insanity. Now, bearing in- in mind the struction, your duty charged law, person and state You are is it is to find your person is to be this defendant deemed insane when such is verdict whether laboring time, under such sane or insane this the time of defect of as at reason September 24, 1969, quality not to know the this nature and to-wit: of doing, act acts or he or does or if did and whether the defendant does he require hospitalization quality know the nature in a mental of his act or acts, protec- doing did not know he was for his own welfare wrong, is, protection or the that he did not tion others. know right giving foregoing difference wrong between the and the After instructions which particular upon as to the the issue act defined the issue as “a trial or acts doing. present court, nevertheless, insanity” The mind must de- be so dealing deprive verdicts, throned reason as to submitted at 3 forms of knowledge sanity petitioner time wrong time of with at the acts, September as to his act or the habeas and de- prive power dealing sanity him of the choose between second the time with right wrong to his act or acts. of the trial you addressing sanity In this in- connection are further third the time of person alleged structed that law is deemed murder on December presently to be if insane he is in such forth were not The instructions set above presented condition so that District does not to the United States charges against They know the nature of the Court. Clerk were furnished to the him, consequences request through thereof, upon and the mentally courtesy comprehend Attorney unable to of Texas. General improper Our conclusion is buttressed obvious state counsel and the use of an ambiguities respect determining doubts standard *11 legal significance prevented possibility the the accorded fair of a de- be testimony intelligent tached submitted on behalf and ascertainment question state the whether Bruce had this case. Considering competent to stand trial. Dusky The standard emanates the which a murder animus conviction given vitality by the due from and is average jury’s citizen, instills the process of the fifth amendment. clause allegations resolution of like those pro Thus, many like other constitutional presented by protected Bruce must be tections, the for a de standards utilized explosive from the introduction of colla- termination of whether numerous these arguments. teral facts and The record guarantees must be have been accorded complete- reveals however that the application. national The standards ly responsibility failed to fulfill its judging competency for stand regard. this category fall into the same as those con govern principles stitutional which IV composition, participation, voter free Because feel we speech pro federally dom other hearing fundamentally unfair and rights.30 tected thus was conducted a manner which Here, replete the state record is fully fairly would not resolve the is examples M’Naghten of the use of the petitioner’s competency sue judging standard as a basis for Bruce’s trial, we remand to the district court for competency to The proceedings. further Bruce asserts now M’Naghten no rule has relevance to meaningful that no determination can be intelligent competency resolution the retrospectively made of his mental com regardless trial, issue at the time petence Initially, to stand trial in 1965. particular employed by standard a we note properly that this is a thresh one the differ- state. Whether knows old for the court to determine “right wrong” during ence between However, remand. based on the his trial is unrelated the crucial fac- certainly which now exists we see compose Dusky tors standard. no retrospective obstacles to such a de termination. Thus we conclude that hearing by state, eight afforded Bruce While it is true that almost considering years whole, elapsed record as a have since Bruce’s fundamentally passage only The circum time unfair. surrounding hearing, stances factors to be considered.31 Here there issue, preju expert testimony confusion of the crucial is abundant by inflammatory recently dicial and comments of trial Bruce had been ob- Eighth aptly applied though original proceed- 30. The Circuit stated cor- even rectly responded presented issue to the before a state court. Since Federally recognized right, here: is a its deter- by apply courts . mination . . different must Federal standards. varying subject varying standards to determine de- It should not be proceed. perhaps fendant’s fitness When lesser standards established by upon by Federal state law. is called habeas It must be dilution above corpus petition equally applicable mental con- a minimum to assess the guarantee prisoner dition of a the time of to citizens of all states. apply Sigler, Noble been, was, standard or would have court, used or should it apply applicable See, g., F.Supp. the test in Federal crimi- e. Carroll v. (N.D.Tex.) aff’d, nal cases? 446 F.2d 648 (determination years appears answer to us to made trial). competency Federal standard must be actively has now been Bruce Thus at Terrell. solved. the staff served pursuing remedies foreclosing inquiry further while years. case has now been remand, His we seven question on this initial into state and support reviewed over seventeen tends think the evidence However, hearing judges. meaningful the Constitu- federal that a conclusion guarantees procedures which have tion conducted.32 can now be merely form, substance, not to insure deter- the court should on remand If funda- vindication of our citizens’ meaningful can be mine that be re- mental liberties. We would thus proceedings must conducted, further then duty if turned a deaf miss in our we ear If issue. held on the *12 petitioner’s contentions since conclude however the should proceedings this ease evidences conducted, hearing cannot be such a adequately permit him to not which did granted sub- petition be should then the allegations. fairly present his serious ject of course Accordingly, this case is reversed and petitioner a reasonable re-try within remanded consistent time. opinion. with this V with direc- Reversed remanded tions. appropriate to consider We respect to cases add a caveat with corpus pro type. COLEMAN, Judge (concur- in habeas this ceedings Courts Circuit claims not consider ring) should : incompetence I concur in the decision that Bruce are not sufficient where facts given meaningful hearing must clearly gen positively, unequivocally and solely I do this be- the District Court. cause, legitimate real, erate a substantial pre- in the as described capacity doubt to the mental Judge pared by Gewin, meaningfully participate petitioner necessary failed to meet cooperate with counsel adequacy. standards of pat the factual While trial. vary ease, why in “advisory tern will from case to I cannot understand the standard which stant case illustrates jury” opinion on was asked its the sole claim, should met to sustain such a in the issue involved illness, history substan viz. a of mental this, collateral In such attack. cases as incompetence at tial evidence of mental findings of fact and conclusions law supported near time of Judges, responsibility ju- are the physicians opinions qualified ries. laymen. testimony of The burden is might say much that I allega There is else prove petitioner on the tions; proof but, hopefully, the hear- such be clear about this case convincing. will held in the District Court extirpated necessity for such re- have truly this case

It unfortunate that finally definitively re- marks. has not Beto, (N.D.Tex.1972) ; Sharp Supp. McGarrity Beto, F.Supp. (N.D.Tex.1967). F.Supp. (S.D.Tex.) aff’d, Sensabaugh 343 F.