In this case, we are once again confronted with the difficult task of reviewing the question whether a state prisoner is entitled to a writ of habeas corpus because of his alleged incompetence to assert an intelligent and meaningful defense during his trial. The record discloses an unusual and bizarre factual background. We do not lightly undertake our responsibility because it was a fundamental precept at common law,1 and more recently a constitutional mandate that one who is incompetent cannot be criminally prosecuted.2

Robert Bruce, a state prisoner appeals from the denial of his petition for the writ of habeas corpus by the district court. On November 2, 1965, Bruce was convicted of the murder of his wife and the jury imposed a sentence of life imprisonment. His conviction was affirmed on direct appeal.3 His subsequent application for a writ of habeas corpus to the Texas Court of Criminal Appeals was denied without a hearing. Thereafter on December 6, 1966, he filed a petition for the writ of habeas corpus in the United States District Court for the Northern District of Texas which denied the writ. On appeal, we vacated and remanded the case with instructions to dismiss the writ without prejudice to Bruce so he could reapply for relief in the state court in which he was convicted.4

Accordingly, Bruce sought relief from the state convicting court. The state court empaneled a jury and after a full hearing in which extensive testimony was presented, the jury returned a verdict that Bruce had been competent to stand trial in 1965 for the murder of his wife. Adopting the findings of the jury, the state court denied relief on September 26, 1969. On appeal the Texas Criminal Court of Appeals affirmed without opinion and Bruce instituted the instant petition in the United States District Court. The United States District Court concluded that the competency issue was fairly resolved by the state court and dismissed the petition. After a careful review of the state court record, we remand to the district court for further proceedings consistent with this opinion.

* In order to place this case in proper perspective it is necessary to set forth a detailed statement of the undisputed facts. As earlier indicated, the facts are bizarre, novel and most unusual. During the Christmas season, specifically on December 22, 1964, Bruce killed his wife, the mother of his three children, by shooting her with a pistol. After his arrest and while in the Dallas County Jail Bruce attempted to take his own life. It is now admitted that the record supports the conclusion that he was sane at the time of the homicide.

Shortly thereafter, on January 12, 1965, a grand jury was convened to investigate the case. Private counsel was retained and Bruce was examined by two psychiatrists, Dr. Pickard and Dr. Holbrook. On February 26 they pronounced him insane and classified his mental disease as "Paranoid Personality Disorder, Severe, Chronic."5 On March 1, 1965 the grand jury no-billed the case and Bruce was held for a lunacy commitment. Two days later, the Probate Court of Dallas County concluded that Bruce was insane and "ordered, adjudged and decreed that (Bruce) is hereby adjudged mentally ill and requires observation and/or treatment in a mental hospital for his own welfare and protection or the protection of others," and ordered him involuntarily committed to Terrell State Hospital, an institution for the treatment of the mentally ill. There is nothing in the record to indicate that this determination has ever been set aside.

Soon after his admission, Bruce, aided by counsel, obtained a release from the hospital by "Doctor" Reid Brown, alias Freddie Brant, who was subsequently determined to be an imposter and was convicted of perjury and practicing medicine without a recorded license. He was given a sentence of five years under the perjury charge. On May 6, 1965 Bruce voluntarily committed himself to Terrell State Hospital but later escaped. The authorities were advised that he was no longer confined to the hospital and on May 24 a grand jury indicted him for the murder of his wife.

Counsel who had served Bruce to this point, Mr. McNicholas, was dismissed apparently because he insisted that Bruce should enter a plea of insanity in defense of the charge against him. Another attorney, Mr. Snodgrass, was employed with the apparent understanding that both the father and Bruce would not permit an insanity plea because it was felt that such a plea "would reflect on his children."6 He was convicted of murder with malice on September 21, 1965 and on October 28 of that year sentenced to life imprisonment.

At the state court post-conviction hearing to determine whether Bruce was competent to stand trial several witnesses appeared. Attorney Snodgrass who represented Bruce at his murder trial strongly indicated that he was instructed not to use the defense of insanity. Although Mr. Snodgrass "believed" that Bruce was able to communicate with him and assist in his defense, he did state that on two different occasions during the trial Bruce became emotional and erratic and for a short period each time Mr. Snodgrass felt that he was not competent to assist him. There was some testimony that on these occasions the trial judge threatened to bind and gag Bruce if he persisted in emotional outbursts. The state supported its contention of competency with the testimony of only one other witness, Dr. Grigson. Dr. Grigson testified that he interviewed Bruce for one hour in the Dallas County Jail on February 4, 1969 and concluded from that interview and an examination of records that Bruce was competent to stand trial in September, 1965.7

Dr. Hugh Brown (not to be confused with Reid Brown), a physician and former superintendent at Terrell State Hospital, interviewed Bruce on two different occasions in April and September 1969. He also had access to the hospital records which he studied and analyzed. It was his professional opinion that Bruce was not competent at the time of his murder trial.8 Dr. Tauber, another physician employed at Terrell State Hospital, examined Bruce physically and neurologically over a period of six weeks beginning in February 1969. He saw Bruce daily during that period. Dr. Talbot, a consulting psychologist at Terrell State Hospital, administered five psychological tests to Bruce. Dr. Tauber conferred with Dr. Talbot and also examined the records and the treatment administered to Bruce while he was a patient at the hospital. It was Dr. Tauber's conclusion that Bruce was not mentally competent to stand trial in September 1965 when the trial was conducted.9 Attorney McNicholas expressed the opinion that Bruce was unable to effectively communicate with him and was incompetent to assist in a criminal proceeding during the time he served as Bruce's attorney. Bruce's father described a long history of aberrational behavior commencing in early childhood and continuing throughout his adult life.

The medical records of the Marine Corps reflect that Bruce experienced rather severe emotional trouble while he served as an enlisted man. At one time while he was drinking he seized a rifle and commandeered the barracks where a number of marines were quartered. He was finally subdued by six other marines and the record indicates that it required six fellow marines to transport him to the hospital.10

After presentation of all the evidence, the jury returned a verdict concluding that Bruce was competent to stand trial in 1965. The state court adopted the findings of the jury and denied relief. The district court reviewed the record of the state court proceedings and concluded that Bruce had been given a full and fair hearing on the issue of insanity, and the evidence adduced at the state proceeding supported the conclusion that Bruce had been sane and fully capable of standing trial in 1965. We now review the correctness of these conclusions.

Our analysis commences with the elementary observation that the conviction of an accused while he is legally incompetent violates due process.11 The contours of this fundamental right were delineated by the Supreme Court in Dusky v. United States,12 where the Court held that the test for determining mental competency to stand trial is:

whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.13

As is often the case, however, the legal principle is explicated with an ease not present when procedures are attempted to effectuate the right thus recognized. This problem is further accentuated when one attempts to present a competency challenge long after the trial as in the instant case.

This court has attempted to provide a meaningful procedure for determining competency to stand trial in a subsequent post-conviction hearing. We have recognized that such defenses should normally be presented at the trial itself.14 Nonetheless, the Supreme Court has held that,

[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.15

Thus any attempt to argue that an incompetent defendant has waived his right to assert incompetency to stand trial in a post-conviction proceeding will generally fail. If a defendant can present sufficient objective evidence following his trial which necessitates a hearing to determine whether he was competent at trial, it follows naturally that he has presented enough evidence to overcome any waiver argument presented by the government.16

We have previously enunciated the proper procedure for a district court in this circuit to follow when an incarcerated felon attempts by a writ of habeas corpus to prove that he was incompetent at the time of trial as follows:

. . . when a prisoner, either state or federal, seeking post-conviction relief, asserts, with substantial facts to back up his allegation, that at the time of trial he was not mentally competent to stand trial, and that there was no resolution of that precise issue before he was tried, convicted and sentenced, the protection of the Fourteenth Amendment to the Constitution requires that such conviction and sentence be set aside unless upon adequate hearing it is shown that he was mentally competent to stand trial.17 . . it will be the duty of the trial court . . . to decide whether it can conduct an adequate hearing on the question of [the prisoner's] competency to stand trial . . . . If it cannot, it will be under the obligation to set aside the judgment of conviction and remand the case to the state courts for a new trial at which time it will, of course, be open to [the prisoner] to have an adequate hearing on his then mental capacity to stand trial.18

In sum, the district court must determine whether a meaningful hearing can be conducted at all. If this threshold issue can be answered in the affirmative, then a hearing should ensue at which time both sides can present evidence on the ultimate issue of competency to stand trial.

We feel that only two issues raised by petitioner need be resolved for a proper disposition of this case. First, on the basis of the record before us, can it be concluded that a meaningful determination nunc pro tunc of Bruce's competency to stand trial may be accorded him? Second, assuming that such a hearing could be conducted, does the record of the state proceedings support the conclusion that Bruce was afforded such a meaningful hearing? It is our considered opinion that even though a meaningful hearing might have been conducted to determine Bruce's prior competency to stand trial, the events and circumstances surrounding the state hearing were of such a nature that the meaning-fulness of that proceeding was completely vitiated. We are thus compelled to remand to the district court for a full, fair and hopefully final hearing on petitioner's competency to stand trial for the murder of his wife in 1965.

Since the district court fully approved the critical facts found in the state proceedings we are essentially reviewing the state court's determinations.19 In Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), the Supreme Court articulated the standards to be applied by a federal district court in deciding whether a de novo hearing should be granted to state habeas corpus petitioners. The Court held that a new hearing must be granted if "for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing."20 Thus, it is the duty of a federal court to initially review the state court proceedings for the purpose of resolving whether they were conducted in a manner to fairly adduce the facts surrounding a petitioner's claims.21

Under the unusual facts and circumstances disclosed by the record of the state court proceedings we cannot escape the conclusion that the district court erred in this regard. We limit our decision to such facts and circumstances. Since the lower court in effect adopted the findings of the state habeas proceeding, it implicitly held that the procedures there employed were consistent with a fair and full ascertainment of the facts. Our review of the state proceeding leads us to the opposite conclusion. There are several reasons for our conclusion that the state proceeding did not meet the requisite standard of a full and meaningful hearing. Although each surrounding factor might not be sufficient when viewed in isolation, when the state record is scrutinized as a whole, the inherent prejudicial impact of the state proceeding is given full significance.A. Confusion of the Issues

Bruce was given a hearing before the state court on September 24, 1969. The court empaneled a jury to determine the contested issues of fact. In this proceeding, however, the jury was required to resolve three controverted factual issues: first, Bruce's criminal responsibility for the murder of his wife in 1964; second, his mental competency to stand trial in 1965; third, his mental competency during the pending hearing. Thus the jury's assignment was not an easy one considering the fact that it had to resolve conflicting lay and expert testimony on three distinct mental faculties of Bruce both in time and circumstance.

Moreover, the state court record reveals that these distinct issues were not kept separate and were often intermixed which must have resulted in confusion in the minds of the jurors. Both criminal responsibility and mental competency to stand trial involve issues of one's perception of his surrounding environment, his ability to relate to that environment, and his reactions to what is perceived. The cases and authorities have repeatedly noted that when questioning lay or expert witnesses concerning an individual's mental competency to stand trial, the questioner should be exact in his examination in order that the proper light may be shed on the crucial factors which compose an intelligent competency determination.22

Any resolution of a factual controversy requires evidence and testimony which is both material and relevant to the contested issues. When dealing with a competency issue the trier of fact needs evidence on a petitioner's "present ability to consult with his lawyer with a reasonable degree of rational understanding" and on "whether he has a rational as well as factual understanding of the proceedings against him."23 At the state proceeding, the interrogation was so ambivalent and equivocal on the issue of competency, that any determination of Bruce's competency was meaningless.24

Conflicting expert and lay testimony was presented at the state hearing. Drs. Hugh Brown and Tauber concluded that Bruce was "insane" at the time of his state trial, while Dr. Grigson concluded that he was "sane." Attorney McNicholas felt that Bruce was "insane" and attempted to assert such a defense for his former client while Attorney Snodgrass was convinced that Bruce had been "sane." The only evidence to the contrary was the testimony of Attorney Snodgrass, who served under limiting instructions from Bruce's father and the opinion of Dr. Grigson who spent only one hour with Bruce while in jail.

In view of the nature of the evidence, a serious factor which accentuated the potential for unfairness was the highly inflammatory and prejudicial comments of the state counsel's closing arguments to the jury. In rhetoric reminiscent of a television drama state counsel warned the jury that:

I suggest right now he's [Bruce] thinking, he knows that they have already said he was sane in '64 already said sane now, you find him insane at the time of his trial, he goes free. That's what he knows, because you can't incarcerate in a mental hospital a sane man. I think he knows that he can't be tried again. I think he knows the memories have faded and the evidence has dissipated in the intervening four years.

That's what I think he knows. It's a very clever attempt to put something over on you as jurors to where he gets out of prison after having done life, [sic] been given a life sentence in Dallas County for the crime of murder with malice.

This is your county. You can do what you want to. You're the arbiters of what goes on in this county. If you want him walking the streets of your county, you go ahead and let him out; find him insane at the time of his trial and you will have effectively let him out of prison. That's what you are facing in your decision in this trial. [Emphasis added]

Such emotional, erroneous and prejudicial comments have no place in a dispassionate resolution of the question whether Bruce was competent in 1965 to stand trial.

These comments most probably infected the whole decision-making process of the jury. State counsel knew that Bruce could be retried and his assertion to the jury that he could not was erroneous. Such irrelevant diatribes cannot be countenanced.25

We are mindful of the fact that federal courts do not sit as courts of errors and appeals when a state prisoner seeks federal habeas corpus.26 At the same time, we cannot ignore our responsibility to insure that an accused obtains a fair trial by an impartial jury. As the Supreme Court has reiterated time and again, "[e]xercise of calm and informed judgment by . . . [a jury's] members is essential to proper enforcement of law."27 Highly prejudicial remarks uttered by the prosecutor jeopardize the jury's deliberative processes and hence infringe upon an accused's right to a fair hearing on the merits of the case.28

Finally, and perhaps most important of all, there is another reason why this case must be remanded to the United States District Court for an appropriate hearing. The jury instructions given by the state habeas court at the state post-conviction hearing were brief, and although somewhat ambiguous, seem to indicate that the M'Naghten rule was the controlling standard to determine competency to stand trial.29 It is not necessary for us to reach the question whether the State of Texas should or should not use the M'Naghten rule to determine criminal responsibility at the time of the alleged crime. Apparently such was the Texas rule at the time of the post-conviction hearing in September 1969. However, we are firm in the conclusion that the M'Naghten rule cannot be used as a standard to determine competency to stand trial. Again we emphasize that the appropriate standard required by the federal constitution is set forth with simple clarity in Dusky v. United States, supra:

. . . whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.

362 U.S. at 402, 80 S. Ct. at 789.

Our conclusion is buttressed by obvious doubts and ambiguities with respect to the legal significance to be accorded the testimony submitted on behalf of the state in this case.

The Dusky standard emanates from and is given vitality by the due process clause of the fifth amendment. Thus, like many other constitutional protections, the standards utilized for a determination of whether these numerous guarantees have been accorded must be national in application. The standards for judging competency to stand trial fall into the same category as those constitutional principles which govern jury composition, voter participation, freedom of speech and other federally protected rights.30

Here, the state record is replete with examples of the use of the M'Naghten standard as a basis for judging Bruce's competency to stand trial. The M'Naghten rule has no relevance to an intelligent resolution of the competency issue at the time of trial, regardless of the particular standard employed by a state. Whether one knows the difference between "right and wrong" during his trial is unrelated to the crucial factors which compose the Dusky standard.

Thus we conclude that the hearing afforded Bruce by the state, considering the record as a whole, was fundamentally unfair. The circumstances surrounding the hearing, the confusion of the crucial issue, the prejudicial and inflammatory comments by state counsel and the use of an improper standard in determining his competency prevented a fair possibility of a detached and intelligent ascertainment of the question whether Bruce had been competent to stand trial. Considering the animus which a murder conviction instills in the average citizen, a jury's resolution of allegations like those presented by Bruce must be protected from the introduction of explosive collateral facts and arguments. The record reveals however that the state completely failed to fulfill its responsibility in this regard.

Because we feel that the state hearing was fundamentally unfair and thus was conducted in a manner which would not fully and fairly resolve the issue of petitioner's competency to stand trial, we remand to the district court for further proceedings. Bruce now asserts that no meaningful determination can be made retrospectively of his mental competence to stand trial in 1965. Initially, we note that this is properly a threshold question for the court to determine on remand. However, based on the record which now exists we certainly see no obstacles to such a retrospective determination.

While it is true that almost eight years have elapsed since Bruce's trial, the passage of time is only one of the factors to be considered.³¹ Here there is abundant expert testimony and at the time of trial Bruce had been recently observed by the staff at Terrell. Thus while not foreclosing further inquiry into this initial question on remand, we think the evidence tends to support the conclusion that a meaningful hearing can now be conducted.32

If on remand the court should determine that a meaningful hearing can be conducted, then further proceedings must be held on the competency issue. If however the court should conclude that such a hearing cannot be conducted, then the petition should be granted subject of course to the right of the state to re-try petitioner within a reasonable time.

We consider it appropriate to add a caveat with respect to cases of this type. Courts in habeas corpus proceedings should not consider claims of mental incompetence to stand trial where the facts are not sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during a criminal trial. While the factual pattern will vary from case to case, the instant case illustrates the standard which should be met to sustain such a claim, viz. a history of mental illness, substantial evidence of mental incompetence at or near the time of trial supported by the opinions of qualified physicians and the testimony of laymen. The burden is on the petitioner to prove his allegations; such proof should be clear and convincing.

It is truly unfortunate that this case has not finally and definitively been resolved. Bruce has now been actively pursuing his post-conviction remedies for seven years. His case has now been reviewed by over seventeen state and federal judges. However, the Constitution guarantees procedures which have substance, not merely form, to insure the vindication of our citizens' fundamental liberties. We would thus be remiss in our duty if we turned a deaf ear to petitioner's contentions since the record in this case evidences proceedings which did not adequately permit him to fairly present his serious allegations. Accordingly, this case is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded with directions.

I concur in the decision that Bruce must be given a meaningful hearing in the District Court. I do this solely because, as described in the opinion prepared by Judge Gewin, the State Court hearing failed to meet the necessary standards of adequacy.

I cannot understand why an "advisory jury" was asked its opinion on the sole issue involved in the post-conviction collateral attack. In such cases as this, findings of fact and conclusions of law are the responsibility of Judges, not juries.

There is much else that I might say about this case but, hopefully, the hearing to be held in the District Court will have extirpated the necessity for such remarks.