On the night of December 13, 1963 Dezso John Lokos invaded the home of Leonard H. Culpepper, bound him and shot him dead, and dumped his body into a well. Lokos was tried and sentenced by the Alabama court first to death but then commuted to life imprisonment. Further information about the crime, its repulsive perpetrator, and the 16 year old legal enterprise concerning his disposition, may be found elsewhere.1 Our concern at this point is the competency of Lokos to stand trial in 1964. We now hold that the constitutional requirements of Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), were not satisfied, and we hold that the record before the federal trial court establishes that Lokos was incompetent to be tried. The relief sought by the petitioner is finally granted.

The homicide occurred near Linden, Alabama on December 13, 1963. Less than a week later Lokos was apprehended in Texas. He was returned to Alabama and charged with murder in the first degree; the trial was set for February 27, 1964. In advance of trial the appointed attorney for Lokos moved for a psychiatric examination.2 The Alabama court conducted a hearing on the motion. Four law enforcement officers who had seen and talked to the accused during his confinement testified that they considered him sane. A medical doctor, not trained in psychiatry or psychology, who had talked to Lokos for 30 minutes and who had not considered any of his history of mental illness, testified that Lokos "acted sane" and knew "right from wrong". Lokos himself testified about his history of prior psychiatric commitments and treatments.

Counsel for Lokos offered in evidence a three page letter that he had received from the director of the Winnebago State Hospital of Wisconsin which summarized Lokos' life history, including his institutionalizations, escapes and treatments. The letter advised that the entire record of Lokos was not being reproduced and mailed because it ran well over 100 pages. Highlights of the letter: Lokos entered the state hospital on July 25, 1953 under a mentally ill commitment signed by the judge of Racine County, Wisconsin. He was conditionally released on October 24, 1953 and was returned from conditional release on January 19, 1954. His diagnosis on all admissions was "Schizophrenic Reaction, Paranoid Type" and while in the hospital Lokos received both insulin shock and electro-shock therapy. "During much of the time that he was in the hospital he got along very poorly and had feelings of being persecuted here. After leaving the hospital he continued under the care of a psychiatrist in his home community." Lokos left the hospital on a conditional release in August of 1955. The letter concluded "The long-term prognosis in this case was not very good although there was not very much evidence of an active psychotic process at the time that the boy left this hospital."

The state trial judge refused to admit the letter into the evidence and apparently because it was hearsay refused to consider it for any purpose. This was probably the determinative error of the trial judge. Indicia of a defendant's incompetence to be tried, sufficient to raise a doubt so as to require the judge to make further inquiry, need not be presented in a formal motion nor argued by defense counsel nor be presented to the judge in the form of admissible evidence. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). The Alabama law is in accord. Lokos v. State, 278 Ala. 586, 179 So. 2d 714, 718 (1965); Buttram v. State, 338 So. 2d 1062, 1064 (Cr.App.Ala.1976).

Following the hearing, the state trial judge overruled the motion of the defendant and said: "The court is not satisfied from the evidence submitted that the defendant was insane or that there is sufficient evidence presented to the court to even indicate insanity."

When the trial began a week later, counsel for the defendant again asked that there be examination by an expert of the defendant, and the letter from the superintendent of the Wisconsin state hospital was again offered. The trial judge allowed the letter to be identified and included in the record but would not allow it to be read or admitted into evidence, saying "It is the same letter which has been heretofore presented to the court in another matter, and the court is familiar with it." The judge further overruled the motion for the appointment of a psychiatrist to examine Lokos.

Constitutional due process requires that trial of an accused may be conducted only when he is legally competent. Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956). In Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), the Supreme Court wrote that the test for determining defendant's mental competency depends upon:

(W)hether he 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 proceeding against him. Id. at 402, 80 S.Ct. at 789.

One who has been convicted may collaterally attack that conviction by proving his incompetency at the time of the trial by a preponderance of the evidence. He is entitled to an evidentiary hearing for that purpose when he makes a showing by clear and convincing evidence to raise threshold doubt about his competency. Zapata v. Estelle, 585 F.2d 750 (5th Cir. 1978).

State procedures must be adequate to insure the right to be tried while competent. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). A court must sua sponte conduct an inquiry into a defendant's mental capacity if the evidence raises a bona fide doubt as to the defendant's competency at that time. Id.; Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975).

A "Pate violation is a procedural error by the trial court and it may occur only in the time frame encompassed by the trial itself and immediately related proceedings. . . . It is always open for the defendant to later assert his actual incompetence at trial in a subsequent collateral proceeding, but the substantive claim should not be confused with a defendant's procedural rights under Pate to a hearing whenever a bona fide doubt as to competence surfaces at trial." Reese v. Wainright, 600 F.2d 1085, 1093 (5th Cir. 1979); Zapata v. Estelle, 588 F.2d 1017 (5th Cir. 1979).

The habeas corpus petitioner's burden to prevail on a Pate violation is different from the one stated above for the substantive claim. The complaint that a Pate procedural guarantee was violated is that, in the light of what was then known to the trial court, the failure to make further inquiry into defendant's competence to stand trial denied him a fair trial. Drope, 420 U.S. at 174, 95 S.Ct. at 905. The test is an objective one. Pedrero v. Wainright, 590 F.2d 1383 (5th Cir. 1979). The question is: Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant's competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense. "While the Supreme Court has not articulated a general standard for the nature or quantum of evidence necessary to trigger a competency procedure, it has focused on three factors that should be considered: the existence of a history of irrational behavior, defendant's demeanor at trial, and a prior medical opinion." Chenault v. Stynchombe, 546 F.2d 1191, 1192-93 (5th Cir. 1977), citing Drope, 420 U.S. at 180, 95 S.Ct. at 908. Even one of these factors, standing alone, may, in appropriate circumstances, be sufficient "the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated." Drope, 420 U.S. at 180, 95 S.Ct. at 908.

If it is decided in the collateral attack that the original trial court committed a Pate violation, the question then becomes whether a hearing can now be adequately held to determine retrospectively the petitioner's competency as of the time of his trial. If the state does not convince the court that the tools of rational decision are now available, the writ should be granted. If a meaningful hearing can be held nunc pro tunc, then it proceeds with petitioner bearing the burden of proving his incompetency by a preponderance of the evidence. Martin v. Estelle, 546 F.2d 177 (5th Cir. 1977); Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967).

III. PROCEEDINGS IN THE FEDERAL DISTRICT COURT

During the three occasions when this case has been before the federal district court it has considered both the substantive and procedural contentions of petitioner Lokos, and it has rejected all of them. The district court concluded that the Alabama state trial court complied with procedural due process and that no bona fide doubt was raised of the competency of Lokos to be tried. The inquiry made by the Alabama trial court was, in the view of the district court, a reasonable one; and the constitutional requirements were satisfied and no further investigation or hearing needed to have been made.

The federal judge further held a hearing in 1977 on the substantive question of whether or not Lokos was competent when he was tried in 1964. In addition to the record of the proceedings before the Alabama court, considered also on the procedural question, the federal judge heard additional testimony and then found that the petitioner Lokos: (1) failed to present probative evidence to raise a substantial doubt as to his competency to stand trial, (2) failed to prove that he was incompetent or that there was any substantial question that he was incompetent, and (3) failed to prove by a preponderance of the evidence that he was incompetent to stand trial.

We disagree and hold that there were both procedural and substantive infractions in the Alabama trial court.

As stated above, the state trial judge heard testimony by Lokos of his prior psychiatric commitments and saw the three-page letter from the director of the Winnebago state hospital which summarized Lokos' life history, including his institutionalizations, escapes and treatment. Juxtaposed to this disturbing picture was only the testimony of the peace officers who considered Lokos sane, and the testimony of the medical doctor who after a brief examination saw no abnormality.

The Chief Justice stated in Drope that, under appropriate circumstances, the existence of any one factor the existence of a history of irrational behavior, defendant's demeanor at trial, or prior medical opinion could be sufficient to trigger a Pate inquiry. While Lokos' demeanor and testimony discussed below might not have prompted the trial judge to investigate further, Lokos also presented a history of mental illness, suffered learning disabilities as a child as well as an inability to adapt to his social environment, and experienced a series of commitments to a mental institution where he underwent electro-shock and insulin shock therapy. Although Lokos was conditionally released under a physician's care after a two year commitment, which included prior escape attempts and one prior unsuccessful conditional release, Lokos left his physician's supervision without either notice or permission and wandered about the country for several years in what was characterized as an essentially "nomadic" existence, which ended with his arrest in this case.

Had Lokos' life been marked by a period of normal, adaptive behavior, the trial court would perhaps have been entitled to accord less weight to the evidence of his prior mental illness. See Carroll v. Beto, 421 F.2d 1065 (5th Cir. 1970). Unlike other instances in which relief has been denied, see, e. g., Grissom v. Wainright, 494 F.2d 30, 32 (5th Cir. 1974), in this case there were specific and repeated requests by counsel for a psychiatric examination.

We see the explanation for the error of the state trial judge to be, primarily, his ignoring the letter from the Wisconsin institution. Furthermore, our reading of his comments leads us to doubt that he focused upon anything but the criminal responsibility of Lokos at the time of the offense. He had at hand the means of further investigation into the history of the mental illness of Lokos and a substantial signal that this illness had been a very severe one.

The Alabama judge had before him the bizarre behavior of Lokos and his highly unusual testimony at his trial. As Lokos detailed his exploits with his three confederates, his lingering annoyance at the younger member (Edwards) of that quartet seems to have overridden perception of his own involvement in the murder of Leonard Culpepper and his predicament before the listening jurors.

Lokos: "I had been feeding it on a bottle and eye dropper and all that. I took this dog all along where ever we went, and what is that kid's name again?

Defense Attorney: Edwards?

Lokos: Yes, Edwards. Edwards said we had a fight over that. He said, "You can't treat that dog that way." I told him it was my dog and I'd treat it the way I wanted and, "You keep your paws off of it unless you want to get hurt or something." So he left me alone, but all the time he was always raising hell, and all the three other people that were involved will prove that. They'll say it, and I know they will, and it's the truth that we always argued. . . .

He did not try to impress the jury favorably:

Lokos: ". . . we wound up at the church, behind the church. We fried chicken and all kinds of meat we got from the last place in Oklahoma. They had a heater in there, and we slept there that night and started running around the next morning. Edwards wanted to go again. He said, "I feel like raiding." I don't know how he could feel like it, but that's what he said. Shucks, anyhow, we went riding around and go by the well and all that, and I don't know who in the devil mentioned it, but somebody mentioned that the well would be a good place to throw them in. I don't know if it was me, and we all agreed we was going to look around for some place to rob. The food was getting low again. I wanted to rob the church house, and Eaton agreed. He said that was a grand idea; when the people came walking in, just take their money and thank you and, you know, be real nice about it. If we had to shoot to get the money, we'd have to shoot everybody.

Then he told the jury about his handling of the man he was about to kill. Culpepper was gagged and bound with strips of towel as Lokos took him from the kitchen of his home out to the back seat of his car. In his narrative he told the defense lawyer:

Lokos: "Any how, I took him out in the car, and I told him he'd better not make any move or else, and he kept on jerking around and his movements were so slow, so irritating. I mean you ask him to move over and man, he looked like he was dying or something. Well any how that was irritating the hell out of me.

Q. But you had a rifle on him; you had charge of him? Now then, in his tied condition, while he was tied up, did Mr. Culpepper offer any resistance to you?

A. Yes. He was a slow moving slob. When I told him to move, he dragged his butt.

Q. And when he did, that made you mad, didn't it?

A. He went too damn slow.

That testimony, without more, could mean that Lokos was a very bad man. Or it could mean that he was pretending to be insane or incompetent. But adding it to the information given in the letter from the Wisconsin hospital gave a picture strongly indicating insanity and incompetency.

Taking all of this together, we find that sufficient information was available to the state trial judge to have raised a bona fide doubt as to Lokos' competency and to have necessitated further inquiry.

A minimal investigation in 1964 would have led the state court to Dr. Glenn Bacon and the contribution which he subsequently gave in the hearing before the federal trial court in 1977. Dr. Bacon was the psychiatrist who saw Lokos in weekly psychotherapy from August until December of 1955 following discharge of Lokos by the Wisconsin hospital which discharge was conditioned upon continuation of care by Dr. Bacon. He was fully familiar with history, treatment and diagnosis and saw Lokos personally until the Lokos family moved to Chillicothe, Ohio. His last correspondence was in October of 1958 when the father of Lokos asked for a prescription of medication for his son's mental illness.

Dr. Bacon explained to the federal court in 1977 that a person in Lokos' condition "lives in a completely different world than most of us and that what he does he does for different reasons, and what he feels about what he does is entirely different from the way we would feel about what we would do." It was the opinion of Dr. Bacon that the psychotic state of Lokos "would have affected his ability to assist his counsel in the defense of the charge of murder against him." When asked: "Do you have an opinion whether or not he could have effectively and realisticly (sic) assisted his counsel in his defense?" he answered, "No, sir, I don't feel that he could have."

Dr. Bacon's testimony was very positive. Predicated on his personal knowledge of Lokos and the history of what occurred in the time following that personal observation, insofar as that history is known to any of us, there was no question to Dr. Bacon but that Lokos was insane and incompetent in 1963 and 1964.3

Two other specialists testified in the federal hearing. Doctor Stickney, a psychiatrist and former commissioner of mental health for the state of Alabama, examined Lokos on two occasions and studied the history of his illness and treatment. He agreed with the diagnosis and with the prior opinion that the impairment of Lokos by the mental illness was severe. It was his opinion that the degree of impairment of Lokos in 1977 was still severe but not the same as it had been since he was no longer in a state of acute psychosis. "He has some of the remaining thinking and affective disorders that go with the schizophrenia but he certainly is in far better shape than he was in 1954." It was his opinion that the psychotic state of Lokos continued through the time of the commission of the crime and his trial.4

The third expert witness at the federal hearing, Dr. Warren, was a clinical psychologist. He had also examined Lokos and the medical history. It was his opinion that at the time of the federal hearing Lokos was a sociopathic personality rather than a psychotic. When asked whether he had an opinion as to whether Lokos was psychotic in 1963 and 1964, he said that he was unable to give an opinion because he lacked sufficient data to make a diagnosis as of that time. At another point in his testimony, he expressed an opinion that Lokos was not psychotic in 1963 and 1964 although he did not explain the reason for that opinion and specifically said that he had insufficient data to say either that Lokos was or was not psychotic.

B. Review of the District Court's Competency Holding

The scope of our review of the trial court's determination on the substantive question, of whether Lokos was competent to stand trial in 1964, is a mixed one. The question of whether or not he suffered from a clinically recognized disorder or psychosis is a question of fact, reviewed by the usual clearly erroneous standard. If we decide that the evidence requires a finding of that mental disorder, then the further decision as to competency or incompetency is a matter upon which the appellate court assumes a greater decisional role and takes a "hard look" at the record. Bruce v. Estelle, 536 F.2d 1051, 1060 (5th Cir. 1976).

We must hold that the finding that Lokos was not suffering from a clinically recognized disorder in 1964 was clearly erroneous. Dr. Bacon knew far more about the matter than anyone else, and he was very positive of the fact. Dr. Stickney was satisfied by what he had been told and had observed that this was the fact. Dr. Warren was undecided.

The only evidence that could be said to be contrary to the determination that Lokos was then psychotic was the demonstration that he could respond to questions in conversations with police officers or on the witness stand, and the testimony of the medical doctor and the peace officers who had observed him and saw nothing abnormal. The nature of Lokos' condition was such that he was able to understand questions and respond to them. One need not be catatonic, raving or frothing, to be unable to understand the nature of the charges against him and to be unable to relate realistically to the problems of his defense. Having the benefit of his medical history in 1954 and 1955 together with the opinion of one of his treating doctors as well as an additional psychiatrist who examined him in 1977, we regard the unnatural testimony he gave to the jurors who were in the process of deciding his fate as being indicative of one who is not operating in the world of reality. The testimony of the lay witnesses before the Alabama court was not of value because they had lacked prolonged and intimate contact with Lokos. United States v. Gray, 421 F.2d 316, 318 (5th Cir. 1970). We conclude that on this record it has been established that Lokos was not competent to stand trial in February of 1964.5

The only conclusion that we can reach from this record is that the mental condition of Lokos in February of 1964 prevented him from effectively consulting with his counsel and rationally understanding the proceedings. The conditional order to issue the writ does not, of course, prevent the civil commitment of Lokos or other lawful custody apart from this particular criminal charge. See Ala.Code tit. 22, § 22-52-37.

The judgment of the district court is therefore reversed and the case is remanded with directions that the writ of habeas corpus be issued, subject to the right of the state of Alabama to retry petitioner within a reasonable time.

REVERSED WITH DIRECTIONS.