Fooks v. United States, 12998-13000.

• Decision Date: 12 July 1956
• Docket Number: No. 12998-13000.,12998-13000.
• Parties: Oliver H. FOOKS, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 348, 246 F.2d 629 (1956)

Oliver H. FOOKS, Jr., Appellant, v. UNITED STATES of America, Appellee.

Nos. 12998-13000.

United States Court of Appeals District of Columbia Circuit.

Argued June 26, 1956.

Decided July 12, 1956.

Petition for Rehearing Denied March 28, 1957.

Statements in Relation to Petition for Rehearing June 13, 1957.

Mr. C. Frank Reifsnyder (appointed by the District Court), Washington, D. C., for appellant.

Mr. E. Tillman Stirling, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Edward P. Troxell, Principal Asst. U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., were on the brief for appellee. Mr. Leo A. Rover, U. S. Atty., at the time record was filed, also entered an appearance for appellee.

Before WILBUR K. MILLER, BASTIAN and BURGER, Circuit Judges.

Petition for Rehearing En Banc Denied March 28, 1957.

Statements in Relation to Petition for Rehearing En Banc June 13, 1957.

PER CURIAM.

In these cases, after intermediate proceedings not necessary to be detailed here, the appellant was granted hearings before the three District Court Judges who had presided at three separate trials in which appellant had been convicted of (1) assault with a dangerous weapon; (2) assault with intent to commit rape; and (3) another assault with intent to commit rape. The hearings so conducted were under 18 U.S.C. § 4245, to determine appellant's competency at the time of his several trials.¹

After extensive testimony was taken, covering in all some eight trial days, in separate findings each of the three judges found that appellant was mentally competent to understand the charges against him and properly assist in his defense at the time he was tried, and that appellant was mentally competent when he was sentenced. Two of the District Judges specifically ruled that, even if the Government had the burden of establishing such competency beyond a reasonable doubt, as to which we now express no opinion, it had carried that burden; and it is fairly inferable that the third District Judge, who, by consent, heard the testimony with one of the other judges, did likewise.

We think the findings of the trial judges were clearly correct and the judgments appealed from are

Affirmed.

On Rehearing in Banc.

Before EDGERTON, Chief Judge, PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, in Chambers.

PER CURIAM.

Upon consideration of appellant's petition for a rehearing in banc, it is

Ordered by the Court that the aforesaid petition be, and it is hereby, denied.

Each Judge reserves the right to file a statement of his views.

Chief Judge EDGERTON and Circuit Judges BAZELON, FAHY and WASHINGTON would grant the petition for rehearing in banc.

Statements of the Majority and of the Minority of the Court in relation to Petition for Rehearing En Banc.

BURGER, Circuit Judge, with whom Judges PRETTYMAN, WILBUR K. MILLER, DANAHER and BASTIAN concur: This statement is filed pursuant to our order of March 28, 1957, which denied appellant's petition for a rehearing en banc. It is occasioned by Judge Bazelon's comments in support of his vote. We voted against granting a rehearing en banc after an exhaustive reexamination of the entire transcript which confirmed our prior conclusion that the hearings held by the trial court were not prejudicial, and the findings were supported by substantial evidence and thus were not clearly erroneous.

A brief summary of the facts in the record will aid in keeping the real issues in perspective: appellant was indicted three times in 1953 for three separate and distinct offenses committed at different times. After three separate trials before three different judges, appellant was convicted and sentenced on each charge. The three separate sentences imposed on appellant are therefore not "consecutive" in the sense that our opinions usually use that term. They are three unrelated sentences for three unrelated convictions and, of course, they must all be served.

Observation of appellant while confined led government custodial authorities to question his mental condition. Pursuant to 18 U.S.C. § 4245 a certificate was issued noting probable cause to believe that appellant was incompetent at the time of his trials. The same judges who had presided at his three trials conducted hearings¹ for the purpose of determining whether or not he was sufficiently competent at the time of his trials to understand the proceedings and assist in his defense. At these hearings, each of which lasted several days,² the issue of appellant's mental competency was thoroughly examined. There was testimony by several psychiatrists, including the doctors who examined appellant while he was imprisoned and who issued the report certifying that there was probable cause to believe appellant was incompetent when tried and convicted. A government psychiatrist from D. C. General Hospital testified to the contrary³ on the basis of his examinations of appellant shortly before the three trials. Confronted with a genuine conflict in the testimony of government psychiatrists, the trial judges allowed cross-examination by both the United States Attorney and appellant's counsel, and the judges questioned the witnesses rather extensively.⁴ In addition several police officers testified concerning appellant's actions and demeanor preceding and during the trials and portions of Fooks' testimony at his trials were read into the record. Appellant also testified upon request of his counsel. In short, these hearings followed the normal pattern of a judicial inquiry where it is necessary to resolve a disputed fact.

Each of the three trial judges, at the conclusion of these hearings, found that appellant had been legally competent to stand trial. This court affirmed those findings in a per curiam opinion.⁵

In the statement filed by Judge Bazelon it is urged a rehearing is necessary since the hearings, as conducted, distorted the fundamental scheme and defeated the purpose of section 4245. This conclusion rests on an assumption that the Prison Director's certificate was denied prima facie effect because (1) the trial judges "imposed" upon appellant the burden of going forward with the evidence and (2) the trial judges permitted Fooks to testify in his own behalf at the request of his counsel. The purpose of this statement is to demonstrate, by explicit references to the record, that the assumption on which the conclusion rests is incorrect.

It is necessary in evaluating the objections to understand first the purpose and effect of section 4245, and second what actually took place before and during the instant hearings. Section 4245 was designed to prescribe a uniform procedure for what amounts to a "nunc pro tunc" determination of a convicted defendant's mental competency at the time of trial where this issue "was not raised and determined before or during * * * trial."⁶ The section provides that upon receipt of a certificate from the Director of the Bureau of Prisons stating there is probable cause to believe the prisoner was mentally incompetent when tried, the court before whom the defendant was convicted must hold a hearing. The sole purpose of the inquiry is to obtain a judicial determination of the prisoner's "mental competency" as of the time he was tried. The statutory test of "incompetency" is not that used to determine "legal insanity," but rather whether the accused was "unable to understand the proceedings against him or properly * * * assist in his own defense * * *." The court is required to vacate the conviction and grant a new trial if it finds the prisoner was, in that sense, "incompetent" to stand trial.

The hearing required by section 4245 is to be held "in accordance with the provisions of section 4244."⁷ The latter section directs the trial court to hold a hearing "at which evidence as to the mental condition of the accused may be submitted, including that of the reporting psychiatrist." Section 4244 lends no support to the contention that the section 4245 hearing should be conducted in some manner other than that followed in the usual judicial proceeding. Section 4245 provides further: "In such hearing the certificate of the Director of the Bureau of Prisons shall be prima facie evidence of the facts and conclusions certified therein."

It is apparent that the certificate, properly considered as one of the elements in a statutory scheme to determine mental competency, serves several functions: (1) it represents a medical opinion that there is probable cause to believe the prisoner was mentally incompetent when tried; (2) it operates as a pleading insofar as it requires a hearing on the issue of mental competency at the time of trial; (3) it creates a rebuttable presumption of mental incompetency which, absent competent evidence to the contrary, controls the judicial determination.

The effect, then, of the certificate is to compel a hearing in which there is a working assumption of incompetency rather than competency. However, when evidence which would justify a finding of competency has been produced, "the presumption falls out of the case. It never had and cannot acquire the attribute of evidence in the claimant's favor. Its only office is to control the result where there is an entire lack of competent evidence." Del Vecchio v. Bowers, 1935, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229.

It is erroneous to intimate that the rebuttable presumption created by the certificate places a burden of proof upon the United States Attorney or that it elevates the certificate to some independent evidentiary stature. The questions of who carries the burden of proof and the degree of probative force which the certificate retains as evidence are governed by considerations foreign to the concept of "prima facie evidence." It is unnecessary to resolve these problems as the rulings on the point in the instant hearings were favorable to appell...