to make decisions" and that he suffered from "loss of self-confidence and fear of loss of control." He characterized the defendant in the report as a person who appears to get along when life is calm and unruffled but who falls apart if the most insignificant complication appears. In the report Dr. Conrad concluded that a trial situation would be very disturbing to the defendant and that he might collapse under even mild interrogation.
On the witness stand Dr. Conrad reiterated these findings and conclusions. He said that the defendant was emotionally very sick and suffered from depression, including suicidal tendencies, and fears of worthlessness, and that defendant was not capable of assisting in his own defense. On examination by the Court Dr. Conrad explained that defendant would become upset and would not be able to participate. He said, however, that defendant was not insane and that he believed defendant understood the proceedings against him.
The last witness at the first hearing was Katherine Horowitz, the wife of the defendant. She testified that she viewed her husband's condition as "a complete nervous and emotional breakdown." He was not able to stand up under the slightest strain and "he couldn't do anything" if any problems arose. He got along so long as problems did not arise. Mrs. Horowitz described their life in Florida as "a very pleasant life". They entertain people, play tennis and bridge, walk on the beach, go swimming and have a "rather normal" social life.
The letters and reports of Drs. Spoont and Almeida were admitted into the record. These reports basically agree with the testimony of Drs. Thrasher and Conrad concerning defendant's state of depression and inability to cope with stressful situations. They do not, however, deal specifically with the defendant's competency to stand trial.
The hearing on April 5, 1973 did not resolve the question of competency to the Court's satisfaction. The testimony of the psychiatrists was brief and conclusory and it did not demonstrate a familiarity by the witnesses with the legal standards. The Court, therefore, on April 11, 1973 arranged to have the defendant examined by Dr. Robert V. DeSilverio, a psychiatrist. In a letter to Dr. DeSilverio the Court briefly explained the charges against the defendant and the standards of competency to stand trial.
The examination took place on April 18, 1973 and a hearing was held on April 24, 1973. Dr. DeSilverio's examination of the defendant consisted almost entirely of taking his history. The session consisted of an interview during which the doctor gained impressions and made judgments from the defendant's answers and behavior. On the basis of this one and one-half hour interview Dr. DeSilverio found defendant competent to stand trial.
Dr. DeSilverio testified that during the interview the defendant exhibited a good memory concerning events in his past and present life. The doctor did not discover any impairment of memory or of his capacity to relate the facts to his attorney. He also indicated a belief that the defendant understood the nature of the proceedings against him. The doctor said that during the interview the defendant never showed a response which was irrelevant. There was no evidence of any psychiatric condition which would deprive defendant of the capacity to testify and to generally assist in his own defense.
The only impediment which Dr. DeSilverio saw to defendant's proper participation was his emotional state. This observation was based on the fact that defendant at times loses his composure, breaks down and is unable to continue. The doctor testified that he did not believe this interfered with his capacity to assist in his own defense more than temporarily. He thought that this was not an entirely involuntary response by the defendant and that it was subject to some control. The doctor likened the breakdowns to a snowball, which once allowed to get started may be unstoppable, but which could be prevented in the initial stages. He foresaw incidents during a trial which would require a break in the proceedings but that these occurrences would most likely be temporary and manageable. Dr. DeSilverio stressed at several points that the defendant did not appear willing to cooperate and that he seemed unmotivated to control his emotions and responses. He suggested that firmness and an attempt to impress upon defendant the advantages of retaining control at trial might lessen the extent and seriousness of any disruptions.
During the April 24 hearing there was an episode in the courtroom which relates very specifically to this petition. As defense counsel began his cross-examination of Dr. DeSilverio, defendant covered his face with his hands and appeared to be crying. Defense counsel drew the attention of the Court and the witness to defendant and asked the defendant to remove his hands from his face. Defendant was visibly weeping and started to exclaim that the doctors had been trying to help him for four and one-half years. The Court then ordered that defendant be excused from the courtroom and Mrs. Horowitz assisted him out.
Dr. DeSilverio testified that he could have predicted such an occurrence and that he had taken such a possibility into account in his judgment that defendant is competent to stand trial. He termed the behavior an "overdramatization of stress" and stated his belief that the outburst was a result of defendant's disappointment in Dr. DeSilverio's conclusion that he was competent.
It is a denial of due process to try a defendant who is mentally incompetent to stand trial. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). In enacting 18 U.S.C. § 4244 Congress has established a statutory procedure for the courts to follow in order to make this difficult and important determination. The procedures followed in the present case, while not in exact accordance with the terms of the statute, provided the necessary examination of defendant by a psychiatrist and a hearing.
A defendant is incompetent according to § 4244 if he is "unable to understand the proceedings against him or properly to assist in his own defense." The Supreme Court, in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam) stated that competency requires more than an orientation to time and place and some recollection of the facts. The Court held that the test is
". . . whether 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 a factual understanding of the proceedings against him."
This test has become the starting point for discussions of competency. E.g., United States v. Marshall, 458 F.2d 446 (2 Cir. 1972); Hansford v. United States, 124 U.S. App. D.C. 387, 365 F.2d 920 (1966); United States v. Sermon, 228 F. Supp. 972 (W.D. Mo. 1964).
A person is not rendered incompetent merely because he is mentally ill to some degree, Hall v. United States, 410 F.2d 653 (4 Cir.), cert. denied, 396 U.S. 970, 90 S. Ct. 455, 24 L. Ed. 2d 436 (1969), or is emotionally unstable, Crawn v. United States, 254 F. Supp. 669 (M.D. Pa. 1966). Rather, competency goes to the ability to participate effectively in one's own case. The United States Court of Appeals for the District of Columbia described it thus:
"[Competency] denotes the intellectual and emotional capacity of the accused to perform the functions which are essential to the fairness and accuracy of a criminal proceeding."