Adams, Max Rosenn, and Hunter, Circuit Judges.
Michael Pogany, a registrant under the Selective Service Act of 1967, was convicted for refusing to submit to induction in violation of 50 App. U.S.C. § 462. In this appeal, eight points of error are alleged in the proceedings below. Since we agree with counsel's contention that a competency hearing should have been held prior to trial, we need not discuss the ancillary questions presented.
At the time of trial Pogany was twenty years old and a high school graduate. Although employed for short periods of time, there is considerable evidence in the record that Pogany's life style could best be characterized as deeply involved in all facets of the drug culture -- apparently including the use of heroin and L.S.D. A few days after Pogany received his notice to report for induction, his father arranged an appointment for him with Daniel Devlin -- a volunteer draft counsellor. After meeting with appellant and learning of his extensive drug use, Devlin recommended that he contact a Dr. Michael Tricario, a psychiatrist specializing in the treatment of young men and women with similar problems. After some procrastination, appellant secured an appointment which, however, he subsequently failed to keep. Treatment began in late January of 1971 and Dr. Tricario so informed appellant's Board in a letter which outlined Pogany's psychological problems -- specifically, his frequent desire to "escape" reality through drug use. Although Tricario recommended that appellant be seen by a Selective Service psychiatrist, no further action was taken by the Board. Pogany remained in individual treatment -- albeit somewhat reluctantly -- for two months. Thereafter, Tricario concluded that given the nature of Pogany's mental problems, he would be better off in a group therapy program. Here, too, Pogany was quite reluctant to participate. In addition, during this time period, Dr. Tricario referred Pogany to two other psychiatrists for examination: Dr. Michael O'Connor administered certain psychological tests and a psychiatric examination was conducted by Dr. Norman Jablon, the director of the Psychiatric Unit at Holmesburg Prison and the psychiatrist responsible for conducting competency examinations and evaluations for the Court of Common Pleas of Philadelphia.
Prior to trial, counsel filed a motion requesting that a competency hearing be held pursuant to 18 U.S.C. § 4244.*fn1 Attached to the motion were the psychiatric reports of Dr. Tricario and Dr. Jablon, the latter report concluding that appellant was incompetent to stand trial.*fn2 The Government did not object to a § 4244 examination or to a hearing but did request that appellant be committed for its duration as permissible under the statute. No action was taken by the Court until January 4, 1971 -- the final call for trial -- when defense counsel again moved for a judicial determination of competency, with the additional request that there be no actual commitment during the examination.*fn3 After a discussion between opposing counsel and the Court, an agreement was reached whereby a continuance would be granted and Pogany examined by a psychiatrist chosen by the Government. The Court then discussed the scheduling of the hearing, indicating that it would be held subsequent to this examination.*fn4
On February 9, 1971, Government counsel forwarded to the trial judge the report of Lieutenant Commander R. B. Stice, M.D., a third year resident in psychiatry at the United States Naval Hospital in Philadelphia. On the basis of a single examination and in response to Government counsel's letter requesting the examination,*fn5 Dr. Stice concluded that Pogany was not "so mentally incompetent as to be unable to understand the proceedings against him or properly assist in his own defense." The report is set out in full in the margin.*fn6 Upon receipt of a copy of Dr. Stice's report on February 11, defense counsel renewed his motion for a competency hearing. That motion was denied and trial commenced on March 11, 1971.
It is unnecessary to comment at any length on the proposition that a defendant convicted while incompetent has been denied due process. See e.g., Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956).*fn7
Congress through Section 4244 has assured an accused that if his mental capacity to cope with the complexities of trial is in doubt, there will be a judicial determination of that issue. If made in good faith and not patently frivolous a Section 4244 motion requesting a psychiatric examination must be granted. United States v. Irvin, 450 F.2d 968 (9th Cir. 1971); United States v. Knohl, 379 F.2d 427 (2nd Cir. 1967); United States v. Walker, 301 F.2d 211 (6th Cir. 1956). Section 4244 provides that where the psychiatric report indicates a present state of mental incompetence, a hearing must be conducted for judicial determination of that issue.*fn8 In applying § 4244, an accused is considered to have the mental capacity to stand trial if 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 proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
As indicated above, rather than appointing an examining psychiatrist and ordering him to report directly to the Court, the entire matter was placed in the hands of the Assistant United States Attorney. The record clearly reveals, however, that the Assistant United States Attorney and defense counsel as well as the Court were under the impression that the examination would be undertaken for the purpose of providing the Government's expert an opportunity to examine Pogany prior to the hearing. There is no indication that this examination was to be performed to aid the Court in its determination of Pogany's competency as required by Section 4244.*fn9 As noted above, Government counsel subsequently wrote to the Chief of the Neuro-Psychiatry Division of the Naval Hospital requesting the examination, noting that a hearing would be held, see n. 7, supra. Dr. Stice's examination took place on January 14, 1971, the report submitted immediately thereafter to the United States Attorney who only then forwarded it to the trial judge.
Initially, we conclude that the Stice examination cannot be deemed a proper substitute for a Section 4244 examination. Fairness requires that the examining psychiatrist pursuant to a § 4244 motion be an officer of the Court and responsible neither to the defense nor the prosecution. United States v. Theriault, 440 F.2d 713 (5th Cir. 1971); In Re Harmon, 425 F.2d 916, 918 (1st Cir. 1970). In United States v. Theriault, the Court stated:
"Sec. 4244 concerns examination to determine if the defendant is competent to stand trial. The court appoints a psychiatrist who examines the accused and reports to the court. Rule 28 [Fed.R.Crim.P.] authorizes the court to appoint its own expert witness, who is expected to be neutral and detached. He advises the parties of his findings. . . . The impartial expert appointed under Rule 28 at the request of defense counsel to inquire into defendant's sanity is not a prosecution witness but the court's witness. . . ." 440 F.2d at 715 (emphasis added).*fn10
The necessity for such a requirement is all the more apparent when in situations such as in the instant case, the trial judge denies a full hearing and bases his determination of competency on a single psychiatric examination. An advocacy role by the Section 4244 examining psychiatrist is simply and obviously inconsistent with the statute's intent to provide a fair and impartial determination of an accused's ability to stand trial.
After having apparently granted the request for a competency hearing, the Court reversed itself upon receipt of Dr. Stice's report. Since the hearing was not held, it is impossible for us to ascertain with any degree of certainty whether Dr. Stice submitted his report as an officer of the Court or as the Government's expert witness.*fn11 We do note, however, that at trial, Dr. Stice was the Government's sole witness on the question of appellant's sanity at the time the offense occurred and we must therefore conclude that there is a likelihood that the examination was conducted primarily in preparation for his appearance as a Government witness. Since there is this probability that the ...