Full opinion text
JOHN W. OLIVER, District Judge. Introduction The history of petitioner’s most recent effort to obtain a post-conviction reversal of his Court-Martial conviction will aid in understanding our treatment, and disposition of this latest petition-for writ of habeas corpus. The general factual background is stated in Swisher v. United States, W.D.Mo.1962, 211 F.Supp. 917 and in Swisher v. United States, 8 Cir.1964, 326 F.2d 97. Those reported decisions do not reveal that both this Court and the Court of Appeals have considered numerous other applications that petitioner had filed in which he had prayed for some form of judicial relief. On June 21, 1963, the Court of Appeals entered an order in its Case No. 17372 (subsequently reported in 326 F. 2d 97, as above noted) in which it reviewed various orders it had made in regard to various proceedings petitioner had attempted to commence in that court.. The Court of Appeals considered what, it described as “a folder of voluminous-papers, stapled together, and entitled' by him [the petitioner] ‘Motion for a Writ of Mandamus’ That order stated that the Court of Appeals would “treat ;and give effect to Swisher’s papers here .as an application for leave to appeal in forma pauperis from the District Court’s ■order making denial of his habeas corpus application, upon the question whether the Court erred in making denial of the application without a hearing.” That order further stated, as later noted on page 97 of 326 F.2d, that “leave to appeal in forma pauperis will be granted for the purpose of settling the question of Swisher’s right to a hearing on this mental competency, and of attempting to put an end to his continuous applications for a writ in the District Court and his repetitive applications for a writ of mandamus here.” Request for appointment of counsel was initially denied in the Court of Appeal’s order of July 14, 1963, but on July 24, 1963, on a further application of petitioner, the Court of Appeals appointed Wyman Wickersham, Esq. of the Kansas City, Missouri, Bar “to serve as counsel for him in preparing briefs particularly on the following questions: “1. Is there any provision in the Military Justice Code for making ■collateral attack against a conviction .and sentence on the ground that the ■defendant was mentally incompetent to stand trial? “2. If the Military Justice Code is without such remedy, does any right exist to make such an attack against a military conviction and sentence in the civil courts? “3. If such jurisdiction exists in the civil courts, was the District Court required to hold a hearing and make a determination on appellant’s claim of such incompetency in the present situation?” The Court of Appeals ordered that the appeal would be heard on the files and records of the District Court and that “all other motions or requests contained in other proceedings that then pended” were overruled. The opinion of the Court of Appeals did not reach the questions it had ordered briefed in its order of July 24, 1963. The Court of Appeals concluded from its review of the records before it, some of which were not before this Court, that a “possible issue” existed relating to whether petitioner’s “mental competency to stand trial may not have been constitutionally adjudicated at his court martial.” The Court of Appeals added that “[w]e cannot presently dispose of that possible issue on the basis of the record before us” (page 97 of 326 F.2d) and remanded the case “for further proceedings in accordance with due process of law” (page 98 of 326 F.2d). After the mandate from the Court of Appeals was filed in this Court, we convened a series of both formal and informal pre-trial conferences in order to insure that all possible material and relevant evidence be made a part of an entirely new and complete record. Sanders v. United States, 373 U.S. 1, 22, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963), teaches that one possible solution to the problem of repetitious post-conviction applications is an “imaginative handling” of a particular complaint in order “to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief.” Petitioner was accordingly granted leave to file an amended petition for writ of habeas corpus under instructions to include every possible gi’ound upon which the petitioner might claim to be entitled to relief. As a result of the conferences between the Court and counsel, a stipulation and a supplemental stipulation were executed and filed. The exhibits attached to those stipulations are voluminous and, as we shall detail later, both parties agreed that there is no other evidence that either party wanted to adduce. Petitioner’s amended petition, for the reasons stated, alleged every possible ground for relief. Petitioner’s briefs, however, concentrated on the particular issues to which we shall first direct attention. Scope of Review in Habeas Corpus Involving a Military Prisoner In one of our memorandum opinions involving an earlier petition for habeas corpus filed by the present petitioner we noted that in order to decide that case we were “not required to determine whether the scope of review of a District Court over court-martial proceedings is the same as the scope of its review over civil trials” (page 918 of 211 F.Supp.). We also noted, however, in Footnote 2 on page 918 of 211 F.Supp., that Judge Wisdom, in Rushing v. Wilkinson, 5 Cir.1959, 272 F.2d 633, 641, cert. denied 364 U.S. 914, 81 S.Ct. 280, 5 L.Ed.2d 229, had suggested that “[a] strong case could be made to show a trend in [the] direction. * * that the scope of collateral review of military trial should be as broad as the scope of collateral review of a civilian, trial.” As the point must be reached in this; case, we now hold, as Judge Wisdom held in Rushing, that Hiatt v. Brown, 339 U.S. 103, 111, 70 S.Ct. 495, 94 L.Ed. 691 (1950); Ex Parte Reed, 100 U.S. 13, 23, 25 L.Ed. 538 (1879); Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), and other cases we shall presently discuss, definitely determine that the scope of review on habeas corpus is more narrow in cases involving military prisoners than it is in cases, involving civil prisoners. Hiatt v. Brown, supra, involved a court-martial conviction for murder. The district court’s grant of habeas corpus was affirmed by the Court of Appeals. The Supreme Court reversed. The Supreme Court noted in Footnote 6 on page 110 of 339 U.S., on page 498 of 70 S.Ct., that the Court of Appeals had cited the following instances of error in the military proceedings that had been reviewed by the District Court: “(1) Accused was convicted on the theory that although he was on duty as a sentry at the time of the offense, it was incumbent upon him to retreat from his post of duty. “(2) Accused has been convicted of murder on evidence that does not measure to malice, premeditation, or deliberation. “(3) The record reveals that the law member appointed was grossly incompetent. “(4) There was no pre-trial investigation whatever upon the charge of murder. “(5) The record shows that counsel appointed to defend the accused was incompetent, gave no preparation to the case, and submitted only a token defense. “(6) The appellate reviews by the Army reviewing authorities reveal a total misconception of the applicable law.” In regard to those errors the Supreme Court noted that the Court of Appeals had considered that such errors were within the proper scope of review and that it had “concluded that certain errors committed by the military tribunal and reviewing authorities [referring to those just quoted from Footnote 6] had deprived respondent of due process.” Hiatt definitely held that consideration of whether there had been a compliance within the due process clause was beyond the scope of proper habeas corpus review by a District Court in military cases. On page 110, 70 S.Ct. on page 498 it was held: “We think the court was in error in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain respondent’s conviction, the adequacy of the pretrial investigation, and the competence of the law member and defense counsel.” And, on page 111, 70 S.Ct. on page 498, the rule of In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636 (1890), was reaffirmed in the following language: “It is well settled that ‘by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial * * *. The single inquiry, the test, is jurisdiction.’ In re Grimley, 1890, 137 U.S. 147, 150 [11 S.Ct. 54, 34 L.Ed. 636]. In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision.” Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950), and Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), were decided on the same day and later in the same year (1950) that Hiatt was decided. Whelchel involved an attempted review by habeas corpus of a court-martial conviction for rape. The Supreme Court affirmed the Court of Appeals affirmance of the District Court’s denial of the writ. Mr. Justice Douglas held that “[t]he main point presented by the petition for certiorari is whether the military tribunal that tried petitioner was deprived of jurisdiction by reason of its treatment of the insanity issue tendered by petitioner” (page 123 of 340 U.S., page 147 of 71 S.Ct). It must also be noted that in that case “ [t] he defense of insanity was not raised * * * either at the pretrial investigation or the trial itself.” The Supreme Court, however, noted that opportunity to raise the defense of insanity both before, during, and after trial, were afforded by the military law. It was for that reason it held that no issue of due process need be considered. Specifically, the Supreme Court held: “We put to one side the due process issue which respondent presses, for we think it plain from the law governing court-martial procedure that there must be afforded a defendant at some point of time an opportunity to tender the issue of insanity. It is only a denial of that opportunity which goes to the question of jurisdiction. That opportunity was afforded here. Any error that may be committed in evaluating the evidence tendered is beyond the reach of review by the civil courts.” In Whelchel’s case, the district court had, in fact, received evidence on the question of whether the prisoner “may have been * * * insane * * * at the time of the crime” (page 124 of 340 U.S., page 148 of 71 S.Ct.). The second opinion of the Court of Appeals for the Fifth Circuit, reported in 178 F.2d 760, shows that the Court of Appeals’ final order affirming the district •court’s denial of the writ was delayed until after the prisoner had been afforded •an opportunity to apply for a new trial to the Judge Advocate General under Article of War 53. Relief by the Judge Advocate General was denied. The Supreme Court took note of that fact as follows: “The Judge Advocate General reviewed all the evidence on the insanity issue which petitioner had tendered both to the military authorities and to the District Court in the habeas corpus proceeding and concluded T entertain no doubt that Whelchel was so far free from mental defect, disease, and derangement as to be able concerning the particular acts charged both to distinguish right from wrong and to adhere to the right. * * * ’ ” In determining that judicial examination of that factual determination was not within the proper scope of review on habeas corpus involving a military prisoner, the Supreme Court held: “Any error by the military in evaluating the evidence on the question of insanity would not go to jurisdiction, the only issue before the court in habeas corpus proceedings.” As we shall state in infinite detail later, the record in this case establishes that practically all of the evidence that petitioner would have us review in support of a requested present judicial factual finding that the prisoner was insane at the time of the offense, was fully and repeatedly presented to the military authorities for their consideration and judgment. We mention that fact now in order to put in focus the proposition that under the rule of WTielchel it would seem that any error that may have been committed by the military in evaluating the evidence is not properly within the scope of our review in this habeas corpus proceeding. Gusick’s case involved a court-martial conviction for murder. It did not rule any question particularly involved in the case at bar. It established the proposition that a military prisoner must exhaust his administrative remedies before a federal court would exercise any habeas corpus jurisdiction in his favor. In defining the area in which the Congress legislates when it passes legislation relating to military law, the Supreme Court held: “Congress was legislating as respects tribunals over which the civil courts have traditionally exercised no power of supervision or review. See In re Grimley, 137 U.S. 147, 150 [11 S.Ct. 54, 34 L.Ed. 636]. These tribunals have operated in a self-sufficient system, save only as habeas corpus was available to test their jurisdiction in specific cases.” In Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), involving a court-martial conviction for rape, the Supreme Court, by a four man opinion written by Chief Justice Vinson, affirmed the Court of Appeals’ affirmance of the District Court’s action in dismissing the applications for habeas corpus without a hearing. (See Burns v. Lovett, 104 F.Supp. 311 for the opinion and action of the District Court). The charges in the applications for habeas corpus were indeed serious. On page 138 of 346 U.S., on page 1047 of 73 S.Ct., they were described as follows: “In these applications petitioners alleged that they had been denied due process of law in the proceedings which led to their conviction by the courts-martial. They charged that they had been subjected to illegal detention; that coerced confessions had been extorted from them; that they had been denied counsel of their choice and denied effective representation; that the military authorities on Guam had suppressed evidence favorable to them, procured perjured testimony against them and otherwise interfered with the preparation of their defenses. Finally, petitioners charged that their trials were conducted in an atmosphere of terror and vengeance, conducive to mob violence instead of fair play.” The Supreme court recognized that “the case poses important problems concerning the proper administration of the power of a civil court to review the judgment of a court-martial in a habeas corpus proceeding” and that the court was “dealing with - habeas corpus applicants who assert — rightly or wrongly —that they have been imprisoned and sentenced to death as a result of proceedings which denied them basic rights guaranteed by the Constitution” (page 139 of 346, page 1047 of 73 S.Ct.). The Supreme Court made clear at the outset that the question of the scope of review in military prisoner habeas corpus eases was not a question of “jurisdiction” in the sense that jurisdiction is generally understood. The Supreme Court explained that the real question related to the manner in which the admitted power, or “jurisdiction” of a District Court, should be exercised. On page 139, 73 S.Ct. on page 1047 it was stated: “The federal civil courts have jurisdiction over such applications [for' habeas corpus filed by prisoners convicted by court-martial]. By statute, Congress has charged them with; the exercise of that power. Accordingly, our initial concern is not: whether the District Court has any" power at all to consider petitioners’" applications; rather our concern is with the manner in which the Court should proceed to exercise its power.” In Bums the Supreme Court reaffirmed the basic rationale of Hiatt. It held that rules of decision applicable to habeas corpus applications involving civil prisoners were not to be applied in habeas corpus proceedings involving military prisoners. On page 139, 73 S.Ct. on page 1047, it was specifically held: “[I]n military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases. Hiatt v. Brown, 1950, 339 U.S. 103 [70 S.Ct. 495, 94 L.Ed. 691], Thus the law which governs a.civil court in the exercise of its jurisdiction over military habeas corpus applications cannot simply be assimilated to the law which governs the exercise of that power in other instances. It. is sui generis; it must be so, because of the peculiar relationship between the civil and military law.” Burns discussed in detail the action that the Congress has taken to provide a complete system of review within the military system to secure rights guaranteed by the Articles of War and by the Uniform Code of Military Justice. In summary, the opinion stated that: “The revised articles, and their successor — the new Code — * * * establish a hierarchy within the military establishment to review the convictions of courts-martial, to ferret out irregularities in the trial, and to enforce the procedural safeguards which Congress determined to guarantee to those in the Nation’s armed services. And finally Congress has provided a special post-conviction remedy within the military establishment apart from ordinary appellate review, whereby one convicted by a court-martial, may attack collaterally the judgment under which he stands convicted.” Because of the very existence of this Congressional system of review the Supreme Court held that “[i]n military habeas corpus cases * * * it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings — of the fair determinations of the military tribunals after all military remedies have been exhausted.” And more significantly, so far as the case at bar is concerned, the court held that “when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence.” Burns, of course, recognized that if a claim had not been presented to the military authorities it could not be said that such a claim could have been “fully and fairly” dealt with by them. It is in those cases, and in cases where claims jWere presented to a military court but the military court refused to consider them, that the rule of Bums apparently require a hearing by a District Court. On this point, Burns held: “Had the military courts manifestly refused to consider those claims, the District Court was empowered to review them de novo. For the constitutional guarantee of due process is meaningful enough, and sufficiently adaptable, to protect soldiers — as well as civilians — from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness rather than finding truth through adherence to those basic guarantees which have long been recognized and honored by the military courts as well as the civil courts.” Burns involved a case where no new claim was made in the application for habeas corpus before the District Court that had not already been presented to the military courts. The problem presented by that case therefore required a determination, from the face of the military records, of whether the claims of the petitioners had been fully and fairly considered by the military. In that regard the Supreme Court held: “These records [referring to the full military proceedings, including the denial of petitioners’ applications for new trial under Article 53] make it plain that the military courts have heard petitioners out on every significant allegation which they now urge. Accordingly, it is not the duty of the civil courts simply to repeat that process — -to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the applications for habeas corpus. It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Accordingly, the Court of Appeals for the District of Columbia Circuit was affirmed although the Supreme Court indicated that it had exceeded the proper scope of review permitted by law. In that regard, the Supreme Court held: “We think that although the Court of Appeals may have erred in reweighing each item of relevant evidence in the trial record, it certainly did not err in holding that there was no need for a further hearing in the District Court.” Burns is the law of the land. That case and its rationale was followed in Fowler v. Wilkinson, 353 U.S. 583, 584, 77 S.Ct. 1035, 1 L.Ed.2d 1054 (1956). In Reid v. Covert, 354 U.S. 1, 37, 77 S.Ct. 1222, 1241, 1 L.Ed.2d 1148 (1957), Mr. Justice Black directed a comparison to Burns in a footnote following his suggestion that “[a]s yet it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials.” But such a comment does not change the controlling effect of Burns and the other Supreme Court cases cited. Problem Created By Direction of Our Court of Appeals on Remand We have been directed to make further inquiry into what the Court of Appeals concluded was a “possible issue” concerning petitioner’s alleged incompetency at the time of trial. The Court of Appeals held: “Our conclusion is that appellant has set forth therein [referring to the ex parte record before the Court of Appeals] some factors which give facial indication of a possible issue existing, that his mental competency to stand trial may not have been constitutionally adjudicated at his court-martial” (page 97 of 326 F.2d). In an earlier opinion we stated in Footnote 1 on page 918 of 211 F.Supp. that “it should * * * be noted that the Board of Review stated that ‘it was expressly stipulated that there was no issue of insanity at the time of trial’ ” (emphasis in our original opinion). That quotation was taken from pages 3-4 of a copy of the Board of Review’s decision of June 4, 1959, which had been furnished us by the Warden of the Medical Center in response to our rule to show cause. An identical copy of that decision appears on pages 55 to 60 of Exhibit D-2 of the present record (the exact quotation appears on pages 57-58 of Exhibit D-2, which are pages 3-4 of the decision.) The Court of Appeals evidently had a copy of the Board of Review’s decision before it on April 10, 1963, because specific quotation of the same portion of the Board of Review’s decision that we had earlier quoted in our memorandum opinion of December 13, 1962 was made in its Case Misc. No. 199. In that case the Court of Appeals had under review our action of December 31, 1962 denying an earlier petition (that is the case reported in 211 F.Supp. 917) together with five other petitions that petitioner had either appealed to or had filed directly in the Court of Appeals. In Case Misc. No. 199, on April 10, 1963, the Court of Appeals stated: “In the petition for a writ filed in the District Court on December 12, 1962, petitioner stated that ‘At the time of conviction, the plea of not guilty by reason of insanity was entered for me, against my own wishes.’ The question of petitioner’s sanity at the time of the corn-mission of the offenses involved was one of the principal issues tried by the General Court-Martial and reviewed by the Board of Review. In the Board of Review’s decision, it was stated, however, that ‘it was expressly stipulated that there was no issue of insanity at the time of the trial.’” (Emphasis ours). No direct attack was ever made of the accuracy of the quotation we made from the Board of Review’s decision in any of the numerous petitions filed by petitioner in this Court. Indeed, the attack made in regard to the quoted portion of the Board of Review’s decision that petitioner most recently made in the Court of Appeals was somewhat oblique. The second of fifteen grounds of complaint in the Court of Appeals stated that “the defense counsel failed to attack by motion the jurisdiction of the court on the grounds that: a. The accused was incompetent to stand trial. * * * ** In the last of the fifteen grounds urged in the Court of Appeals petitioner stated: “That the Law Officer, the court and counsel did not act on the question of sanity of the Appellant at the time of trial as shown by the following excerpt from the transcript. (T. 72-73) * * * * * * “ ‘LAW OFFICER: Now, as to the instructions on insanity, I intend to instruct on mental responsibility. The question arises now as to mental capacity. Is the accused’s mental capacity at this time in issue? “ ‘DEFENSE: You mean so that he can participate in his own defense ? “‘LAW OFFICER: Yes. “ ‘DEFENSE: The defense is not making that an issue, sir. “‘PROSECUTION: Sir, I feel that it was raised by some of the defense witnesses, that the man was and is insane, which was in the issue of sanity. “‘LAW OFFICER:. I’m afraid that some of the psychiatric testimony got into that question as to the accused’s sanity at the present time, which would raise the question of mental capacity. However, since the defense is not raising that point and no motion has been made, it shouldn’t be necessary to instruct on that.’ * * * * * “This has been construed as a stipulation yet it is not a stipulation and the accused did not participate in it and there is no showing that the accused was present at this side Bar conference. We again pose the question how can sanity be stipulated?” Petitioner argued in the Court of Appeals that: “The Appellant’s right to attack a conviction because of ineompetency at the time of trial is preserved to him in the civil courts on petition for a writ of habeas corpus. If collateral attack of a conviction on ground of incompetency to stand trial was available within the military justice system, then that system has abused its rights and discretion to the extent that Appellant’s constitutional rights have been infringed upon.” The Court of Appeals’ opinion obviously did not consider that the opportunity admittedly available under military law for petitioner to have raised the question of insanity at the time of trial, as that law is fully discussed and described in Whelchel v. McDonald, supra, was sufficient “to put to one side the due process issue,” (to borrow Mr. Justice Douglas’ words from page 124 of 340 U.S., page 148 of 71 S.Ct.). The Court of Appeals’ opinion did not suggest what factors in the record before it gave a “facial indication of a possible issue existing, that his mental competency to stand trial may not have been constitutionally adjudicated at his court-martial” (page 97 of 326 F.2d), but it is clear that the Court of Appeals sent the case back to us “for further proceedings in accordance with due process of law” (page 98 of 326 F.2d). Compliance with our Court of Appeal’s direction obviously requires something more than the action taken by the District Court in Bums. We must assume that the Court of Appeals considered that this case belonged in the category of the exceptional case that Burns suggested a hearing would be required; else the Court of Appeals would have decided the case on the merits without remanding it to this Court. Consistent with that thought, we believe that we must search and review the military proceedings de novo in order to determine whether the manner in which petitioner’s mental competency was handled either denied him a fair trial, or otherwise deprived him of some right guaranteed him under the Constitution. Inquiry Is Not Whether Petitioner Was Mentally 111 at the Time of Trial An application of the broadest sort of de novo review of the record in this case does not involve the making of a retrospective determination of whether petitioner was mentally ill at the time of trial. It must be understood at the outset that petitioner, like any other accused, may well have been mentally ill at the time of trial, but could still have been quite competent to stand trial. In other words, it must constantly be kept in focus that mere proof of the fact that petitioner may have been in fact mentally ill at the time of trial does not establish that he was then mentally incompetent to stand trial. Proof of such a fact would establish only one circumstance to which judicial attention must be directed; such proof does not establish anything more. Most, if not all the legal and medical confusion that unfortunately characterizes many of the cases involving mental competency, as distinguished from the entirely different question of criminal responsibility, is the result of efforts to sustain an absolute concept that a particular defendant is not competent to stand trial simply because he may be correctly diagnosed as being mentally ill at the time of his trial. Petitioner’s basic contention in this case is an excellent example of the absolutist rationale. On page 11 of his reply brief petitioner asserts that the facts revealed by this record establish that “petitioner has been mentally ill all of his life * * * [and that] an almost unequalled number of psychiatric evaluations from childbirth to the present [establish] one conclusion: mental abnormality.” The recommended jump to the medical and legal conclusion that petitioner was therefore incompetent to stand trial is then suggested by urging the application of the principle that the “Constitutional guarantee of a fair trial is an essential basis of democracy intended to protect all people but surely it is more particularly intended to protect those who are unable to protect themselves” to the assumed factual situation of this case. There, of course, can be no quarrel with the legal proposition stated; the difficulty arises from the attempted application of its inherent absolute concept that all persons who may quite correctly be diagnosed as mentally ill must therefore be considered as persons who cannot stand trial. Such a proposition can not be maintained from either a legal or a medical viewpoint. Who would hesitate, for example, to put to trial one charged with “kleptomanic-like stealing,” (to borrow a phrase from Dr. Menninger’s book, The Vital Balance, page 208), if it was apparent to competent medical experts and to everyone in the court room that the particular defendant understood the nature of the proceedings against him and could properly assist his defense counsel? Any apparent medical and legal confusion that may be reflected in some of the cases is reduced and most real differences of conflicting judgments are eliminated if both disciplines recognize that both medicine and the law treat and deal with questions of mental illness as measurements of difficult grey questions of relative degree rather than the easy selection of absolute alternatives of black or white. The precise focus of our required search and review of the record therefore is not to determine whether petitioner was suffering from a mental illness at the time of trial; or, even more specifically, whether the diagnosis of schizophrenic reaction, n. e. c. [not elsewhere classified] made by Dr. Alfred B. Lewis, petitioner’s principal defense medical witness, was or was not a correct medical diagnosis. As we have suggested, the medical and legal criteria for determining competency at the time of trial is entirely different from that to be applied in a determination of whether a particular defendant should be held criminally responsible for the commission of the alleged offense in light of his then existing mental condition. When we stated earlier in connection with this case (Footnote 1 on page 918 of 211 F.Supp.) that “[establishment of sanity at either time [i. e., either at the time of the offense or at the time of trial] does not establish sanity for the other”, we had in mind and were making direct — but perhaps too brief— reference to the rules of decision established in this District Court as a result of its frequent treatment of cases arising out of Springfield Medical Center. The judges of this Court have long recognized that a medical diagnosis of mental illness does not conclusively establish that a defendant is not incompetent to stand trial. The leading case in this district, Higgins v. McGrath, W.D.Mo.1951, 98 F.Supp. 670, was written fourteen years ago by Judge Ridge. In that case the defendant was diagnosed as schizophrenic reaction, paranoid type. The reports from the Medical Center are set forth fully in that opinion. Those medical reports show that in those then early days in the administration of Sections 4244-4246 of Title 18 United States Code, the doctors were under the misapprehension that because defendant’s “mental condition is such that he is not criminally responsible for his behavior” and that because “this man remains psychotic and mentally incompetent” that it necessarily followed that “[h]e does not know right from wrong nor can he defend himself or accept the advice of counsel” (page 675 of 98 F.Supp., emphasis ours). Judge Ridge held in Higgins that: “In criminal procedure, the question as to whether one is so insane that he cannot stand trial for a criminal offense is distinct from the question and issue to be determined as to the mental capacity of an accused, as affecting his guilt. * * * A verdict or finding as to an accused’s sanity and mental capacity to stand trial is conclusive only of his mental state at that time. Such a verdict and finding is not conclusive of the mental competency of the accused at the time of the commission of the offense.” Higgins recognized that this Court, merely because the Medical Center is within its geographical jurisdiction, could not determine with finality in a habeas corpus proceeding the question of whether one committed by another District Court under Section 4246 of Title 18 United States Code, was competent to stand trial in that other District Court. Higgins established, however, that “ * * * if despite the judgment of the hospital staff that petitioner has not recovered, or that he does not possess mental capacity to stand trial for an offense, there is substantial doubt on that question from a consideration of criminal legal standards, it becomes the duty of this court to see that a new determination of the petitioner’s sanity is made, and, for that purpose, a writ of habeas corpus may be granted, commanding the return of petitioner before his committing court” (page 674-675 of 98 F.Supp., emphasis ours). The testimony at the hearing in Higgins illustrates vividly the reason why a medical judgment of mental illness does not control the determination of the essentially legal question of competency to stand trial; and why, not infrequently, a judicial determination of competency to stand trial may be in apparent conflict with the expression of a medical opinion that the defendant is mentally ill. The hearing in Higgins revealed that it was “Dr. Glotfelty’s conclusion * * * that from a strict medical viewpoint petitioner is insane, does not know right from wrong, and, as a consequence thereof, petitioner cannot defend himself of the charge made against him.” Of course, it simply does not follow that because a particular defendant is insane that he can not stand trial. If that were true, an insane defendant would never be given an opportunity to present a defense of insanity. The hearing in Higgins established that there was reasonable cause to believe that the defendant was in fact competent to stand trial; and that, indeed, an indefinite continuation of custody without a hearing on the very question of his competency to stand trial by and in the committing court would present obvious due process questions (see page 673 of 98 F.Supp.). In spite of Dr. Glotfelty’s expressed conclusion that the defendant was not competent to stand trial, Judge Ridge noted that “Dr. Glotfelty testified in the instant proceeding, that at the present time petitioner is completely oriented for time, place and persons.” Judge Ridge, after an analysis of all the facts and circumstances in evidence, noted that “petitioner’s testimony reveal that he apparently has full knowledge and memory of the circumstances relating to the commission of the offense with which he is charged” and that “he is capable of advising with counsel concerning any defense to be made to the charges now pending against him” (page 677 of 98 F.Supp.). In summary, Judge Ridge held: “Petitioner’s testimony, taken as a whole, and his appearance before the court, reveal that he is fully oriented as to the instant proceedings, and as to the nature and cause of his present confinement. That he presently has a realization that the acts with which he is charged by indictment are in violation of law; that for such violations he may be subjected to punishment; and that before being so punished, if he is punished, he has the right to a trial on the merits thereof, at which his sanity may be placed in issue, is the only conclusion that can be reached from his testimony.” The defendant in that case was accordingly ordered returned to his committing court for a competency hearing. In so doing, Judge Ridge made clear that the mere fact that the defendant was suffering from a degree of mental illness would not prevent his trial. In that connection it was held: “Whether the insane delusions of petitioner enter into the commission of the crime with which he is charged, is a matter for determination by the trier of the facts on the issue affecting petitioner’s guilt. If such fact exists, petitioner is entitled to have that matter determined. Standing alone, it should not, in our opinion, under the present evidence, prevent petitioner’s trial on charges now pending against him.” In Wieter v. Settle, W.D.Mo.1961, 193 F.Supp. 318, Judge Ridge dealt with another defendant diagnosed as a schizophrenic reaction, paranoid type. Habeas corpus issued. Wieter suggested criteria that doctors should apply to keep them from jumping to the untenable conclusion that a particular defendant is. not competent to stand trial merely because he is in fact mentally ill, or because the doctors were of the firm medical opinion that, because of his mental condition at the time of the offense, he should not be held legally responsible for his alleged criminal action. Judge Ridge noted that the Wieter case was a “classic example” of the type of habeas corpus eases reviewed by this Court involving Section 4244-4246 commitment to the Medical Center by other District Courts throughout the United States. He commented that: “In many such cases this Court is confronted with a conclusion of the Neuropsychiatrie Staff of the Medical Center, that the petitioner, considered from psychiatric discipline, is unable to rationally understand the nature of the criminal proceedings pending against him and is unable to rationally cooperate with his counsel in defense thereto. However, when some such persons personally appear before this District Court in a habeas corpus proceeding it is evident from legal concepts that they, in all probability, are possessed of mental faculties that would sanction their right to stand trial on the charge made against them; and that this Court, in failing to recognize and so adjudicate that fact, would be on the threshold of cooperatively denying some such persons the right to a ‘speedy’ trial as commanded by the Sixth Amendment to the Constitution of the United States.” In Wieter, Judge Ridge emphasized that the judicial inquiry into the question of whether the defendant should stand trial was not an inquiry into whether the defendant was “capable, or incapable, of knowing right from wrong; or as being ‘mentally ill’ or afflicted with ‘mental disease’ ” (page 322 of 193 F. Supp.). As in Higgins, the medical evidence on the particular question of whether the «defendant was competent to stand trial was clear in that “petitioner was well -oriented in the three spheres, of places, •persons -and things; without perceptible abnormalities of hallucinations or delusions ; seemingly, with intelligence in the .average range, although he appeared to be «confused, in his thought processes, with a tendency to lose emotional control when talking about his present and past offenses and his hospitalization, and retreated into autistic hyper-religious ideation * * * ”. Judge Ridge added that “[b]y his testimony, in chief, and under examination by this Court, he [the defendant] elicited knowledge of the facts that led up to his arrest.” It was obvious from other evidence that the defendant had been able to assist his counsel. The medical diagnosis was “[sjchizophrenic reaction, paranoid type, in partial and tenuous remission, manifested by hyper-religiosity, decreased self-control, life history of social and occupational instability, excessive dependency on institutional living, excessive suspiciousness, and grandiose and persecutory ideas.” Because of that diagnosis, a matter not really in dispute, the psychiatrist jumped to the unwarranted conclusion that “petitioner is at the present time unable to . rationally understand the proceedings .against him, and is unable to rationally cooperate with his counsel in his own defense.” Judge Ridge refused to accept that conclusion. He did so with an expression of lack of intention of disparagement of medical opinion; but he made clear the nature of the factual data upon which judicial judgment must be based in determining the particular question of competency to stand trial. He stated that: “When it is evidentially made to appear in a habeas corpus proceeding by a person under arrest status, confined pursuant to Sections 4244-4246, Title 18, U.S.C.A.: (1) that he has mental capacity to appreciate his presence in relation to time, place and things; (2) that his elementary mental processes are such that he apprehends (i. e., seizes and grasps with what mind he has) that he is in a Court of Justice, charged with a criminal offense; (3) that there is a Judge on the Bench; (4) a Prosecutor present who will try to convict him of a criminal charge; (5) that he has a lawyer (self-employed or Court-appointed) who will undertake to defend him against that charge; (6) that he will be expected to tell his lawyer the circumstances, to the best of his mental ability, (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed; (7) that there is, or will be, a jury present to pass upon evidence adduced as to his guilt or innocence of such charge; and (8) he has memory sufficient to relate those things in his own personal manner: ■ — such a person, from a consideration of legal standards, should be considered mentally competent to stand trial under criminal procedure, lawfully enacted.” Our brother Judge Becker applied the rules of decision announced in Higgins and Wieter in Pavlick v. Harris, W.D. Mo.1963, 222 F.Supp. 79. In both cases habeas corpus issued to send a defendant back to his committing court for hearing on his competency to stand trial in the face of medical diagnosis of a dangerous mental illness. And in United States v. Sermon, supra, we refused, on the facts there involved, to accept the medical conclusion of incompeteney to stand trial because of an alleged inability of a particular defendant to assist in his own defense. In Sermon we noted that defendant’s argument that: “The real thrust of defendant’s argument is that any diagnosis and evaluation of any degree of mental illness is conclusive evidence that a defendant is not competent to stand trial.” The real thrust of petitioner’s argument in this case is essentially the same as the argument made in Sermon. In this case, petitioner would have us accept a diagnosis of mental illness (obviously-rejected by the court-martial) to sustain petitioner’s claim that he was not competent to stand trial. In rejecting the essentially similar argument presented in Sermon, we said: “Slough and Wilson, in their article ‘Mental Capacity to Stand Trial,’ 21 U. of Pitts.L.Rev. 593, 595 (1960), posed and answered the question as follows: “ ‘Is mental illness per se sufficient to preclude an immediate trial? Recognizing that implicit in any generalization is the possibility of inaccuracy, we answer that a diagnosis of mental illness, standing alone, is not, under any accepted standard, tantamount to mental incapacity to stand trial.’ ” We add what we also stated in that case: “Of course, the problem in this ease, as in all close cases, is how does one determine whether a particular defendant is sufficiently mentally competent properly to assist in his own defense? Does this particular defendant, in the language of Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), in fact have ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ? ’ Does this particular defendant, again in the language of the same case, have ‘a rational as well as factual understanding of the proceedings against him? ’ ” And, on the question of how much weight must be given a medical diagnosis, we held: “The single fact that the panel of outstanding and respected experts concur in a medical diagnosis * * [of mental illness] does not controllingly answer those and similar questions. Our acceptence of that particular diagnosis does not command .an agreement with the ultimate statutory opinion of the doctors in their report expressed in the language required by Section 4244 [that the defendant was not competent to stand trial].” Consistent with the teaching of Higgins, Wieter and the Pavlick cases, we held in Sermon that: “Defendants do not assist in their own defense by telling their lawyers what motions to file or how a particular witness should be examined, or cross-examined. As suggested in Lyles v. United States, 1957, 103 U.S.App.D.C. 22, 254 F.2d 725 at 729-730, cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067, ‘ “[t]o assist in his defense” of course does not refer to legal questions involved but to such phases of a defense as a defendant usually assists in, such as accounts of the facts, names of witnesses, etc.’ We think it must also be added that the primary assistance that must be rendered counsel is a full revelation of the facts within the knowledge of the defendant in areas which are in legitimate dispute. * * * Specific and particular inquiry must be focused on what the facts show that defendant has remembered and what he has communicated to his counsel.” In making our required review of the evidence in this case, we shall make the same sort of specific and particular review of all the evidence that was considered by the military authorities and all of the additional evidence gathered by the parties after the remand of this ease to this Court for further proceedings. We turn now to that task. Required Review of Medical Evidence Concerning Pretrial Investigation And That Adduced at Court-Martial It must be noted at the outset of the required review of the evidence that petitioner’s mental condition was a matter of concern to the military from the very beginning of the prosecution. The offenses were committed July 12, 1958. The Investigator’s Report was filed July 23, 1958. An affirmative answer was checked on the form of that report in response to the printed question: “9a. There were reasonable grounds for inquiring into the mental responsibility of the accused at the time of the offense.” (Exhibit D-l, page 123). Under 9c. of that report, asking “if grounds for inquiry as to the accused mental condition exists, state reasons therefor and any action taken,” Lt. Synold, the Investigating Officer, stated: “At the time of the investigation the accused was confined in Ward #57, US Army Hospital, Ft. Jackson. Due to the nature of the offenses and actions of the accused, there is some doubt as to his mental condition. The accused is pending psychiatric evaluation the results of which are unknown to the investigating officer. However, during the investigation, in my opinion, the accused appeared to possess sufficient mental responsibility to distinguish right from wrong and to adhere to the right.” (Exhibit D-l, page 123). Question 9b. posed the precise question petitioner seeks principally to review in this case. The question stated: “There were reasonable grounds for inquiring into the mental capacity of the accused at the time of the investigation.” That question was answered in the negative (Exhibit D-l, page 123). The military law, in a manner completely consistent with the civil cases we have discussed above, carefully separates the question of responsibility for the offense from the question of competency at the time of trial. Questions 9a., 9b., and 9c. in the form to which reference has just been made make specific reference to particular and important paragraphs in the Manual for Courts-Martial. Question 9a. — inquiring in regard to responsibility at the time of the offense —refers to “(MCM 120b)”. Paragraph 120b of the Manual provides: “A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right.” Question 9b. — inquiring as to competency for trial — refers to “(MCM 120c)”. That paragraph of the Manual provides: “No person should be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense.” Paragraph 121 of the Manual makes reference to both of the paragraphs just quoted. It establishes the tests applicable to each in the following language: “a. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to distinguish right from wrong (120b) ? “b. Was the accused at the time of the alleged offense so far free from mental defect, disease, or derangement as to be able concerning the particular acts charged to adhere to the right (120b) ? “c. Does the accused possess sufficient mental capacity to understand the nature of the proceedings against him and intelligently to conduct or cooperate in his defense (120c) ?” Absent any evidence to the contrary, and there is none, we cannot assume anything except that the Investigating Officer in fact believed that there was reasonable grounds for inquiring into the mental responsibility of the accused at the time of the alleged offense; and that, by the same token, he did not believe that any reasonable grounds existed for inquiring into the mental capacity of the accused at the time of the investigation. Pretrial Psychiatric Examination and Court-Martial Testimony of Dr. Lewis, Medical Witness for the Defense Captain Alfred B. Lewis, Jr., of the Medical Corps, later to be petitioner’s principal defense witness on the issue of responsibility at the time of the offense, Saw the petitioner shortly after he was placed in Ward #57. His report of July 19, 1958, prepared before the trial of the court-martial, states his diagnosis 6f petitioner’s mental condition as follows: “Schizophrenic reaction, n. e. c., manifested by extreme tension, pathological hostility toward women, a history of attempting violent acts, either assault or rape, against women since age 9, possible visual '■■and auditory hallucinations, suicide wishes, a boastful attitude about his offenses, marked ambivalence, thinking difficulty, and total lack of in\sight into the reasons for his behavior. LD, No, EPTS.” (Exhibit D-3, page 1). But that report also reveals that Dr. Lewis had no difficulty in communicating with the petitioner and that his concern in regard to petitioner’s mental capacity was focused on his mental condition as of the time of the alleged offense. Under Dr. Lewis’ “comments and recommendations” he stated on page 5 of Exhibit D-3 that: “In view of the diagnosis of schizophrenic reaction, which is a mental disease process, it was recommended that authority be granted for EM’s transfer to a neuropsychiatric center for observation, treatment and appearance before a formal Sanity Board, for determination of mental status at the time of the ■alleged offenses on 12 July 1958.” (Emphasis ours.) In the “mental status examination” portion of his report, Dr. Lewis stated that “Patient is a large, obese, 20 year old white prisoner who appears extremely tense and anxious. He is sweating profusely. His conversation is coherent, relevant and spontaneous. Voice is loud and firm. Patient is very open in talking about his offense.” (Exhibit D-3, page 3) and on the next page of his report, that “his orientation and memory are intact.” Dr. Lewis obtained the following detailed history from the petitioner: “On 12 July 1958, according to the patient’s story, he was on pass, in civilian clothes, when he was asked the directions to Company C, 13th Battalion, by the wife of a trainee who was going to visit her husband. He offered to direct the woman to the company and asked to ride along with her. Instead of directing her to the company, however, he directed her to a lonely road on the post. When she became suspicious and started to turn around, he grabbed the wheel from her and threatened her. He made her get out of the car and told her to ‘shut up or I’ll kill you.’ He began to choke her and did so until her fingers turned blue and contracted. He tore her blouse’ and skirt though he states he had no> intention of raping her. He states' that he hit her across the face and' stamped his foot down across her throat and that she ‘gasped like a doomed person.’ He then planned to drive the ear over her head in order to kill her, but when he turned the car around, he accidentally ran into a ditch. He then picked up her clothes and tried to conceal her in the brush. He was able to get the car out of the ditch and then left Fort Jackson to drive to Myrtle Beach, South Carolina. His reason for doing this was that he owed a man there $31.00 and he wanted to pay him off. After transacting this business, patient states that he then drove into North Carolina driving at 120 to 130 miles per hour. At that speed, he had a blowout, turned over several times and went off the road. He then states that he paid a young farm boy with a tractor to pull him out and get his car back on the road. However, when found by the State Police, he was found not to have a registration for the ear and he was booked by them. When they were about to let him go, he confessed that he had killed a woman, so he was transferred back to Columbia.” (Exhibit D-3, page 2). Petitioner was tried on August 29, 1958. Dr. Lewis testified on petitioner’s behalf. That testimony, as is usual, tracked very close to the report the doctor prepared after his pretrial psychiatric examination. In regard to that pretrial examination of petitioner, Dr. Lewis testified at the trial as follows: “Q. What happened at that examination ? “A. I asked him to tell me what had happened. He described this assault, and in his description of it and during that interview I concluded there was sufficient evidence of psychosis that I felt it advisable to transfer him to the psychiatric ward, from which I planned to transfer him to a Class II hospital, such as Walter Reed or Valley Forge for further psychiatric examination.” (Exhibit D, page 45).- At the court-martial trial, Dr. Lewis confessed his diagnosis of schizophrenic reaction (Exhibit D, page 45). His testimony reveals that he fully recognized that the disease he diagnosed involved considerations of degree and that he was troubled, as are many psychiatrists, with' prosecution counsel’s insistence that he-state his medical opinion in absolute rather than relative terms. When asked on cross-examination, for example, “Is it your diagnosis that this man is insane, Dr. Lewis ? ”, he answered“I don’t think that is a proper question. * * * I think the man in certain circumstances adheres to the right. * * * I think the question is improper.” The answers that Dr. Lewis gave to a series of questions propounded by the Law Officer of the court-martial adequately illustrates Dr. Lewis’ view as to why the question posed in terms of absolute sanity or absolute insanity were improper from a medical point of view: “Q. What you are saying, Doctor, is that ordinarily or a greater part of the time a person with a schizophrenic reaction such as you described to the court is considered perfectly normal and sane most of the time? “A. I would conceive of this as being a chronic process which the patient is able to conceal most of the time. “Q. And when he conceals it, he is considered perfectly normal and sane ? “A. * * * “Q. By the people around him ? “A. Yes.” (Exhibit D, page 53). It was in response to further questions by the Law Officer, and in further development of the testimony just quoted, that an apparent and almost accidental, but not a real, inquiry was made in regard to petitioner’s mental condition at the time of trial. The first series of those questions are as follows: “Q. What I’m getting at, Captain, is, can you give us an opinion as to the mental status of the accused at the present time? “A. The mental status concerning what in particular ? “Q. In your opinion — what is your opinion as to his sanity or insanity at the present time ? Do you have an opinion ? ",A. I have an opinion, and my opinion is that he is insane at the present time. “‘Q. My question is: In your opinion, at the present time, is the accused so far free from mental defect, disease, and derangement, to be able to distinguish right from wrong and to adhere to the right ? "A. In my opinion, at the present time, he is not able to adhere to the right. "Q. And your opinion is that he was not able to adhere to the right on 12 July? “A. That is right.” (Exhibit D, page 54). And those questions and answers were immediately followed by further questions and answers in which Dr. Lewis readily conceded to the Law Officer that it was his (Dr. Lewis’) opinion that petitioner was in control for much of the time since the time of the offense, although Dr. Lewis was convinced that his diagnosis was correct and that he would not have wanted petitioner out of custody. Those questions and answers are as follows : “Q. In your opinion, between now and July, has there been any time that he had the ability to adhere to the right? “A. In my opinion, he had the ability to adhere to the right during the interium [sic]. All that I can say, I would be very uncomfortable with him wandering around loose. “Q. Getting back to my question, this condition is it not a potential rather than a real abnormality ? What I mean by that, is not his conduct usually normal and there is a potential there for abnormal conduct? “A. Yes, I think that expresses it very well. “Q. And to a certain extent there is some of that in all people, isn’t there, Captain Lewis? “A. Sir, that is a very difficult question to answer and my first impulse is to say, I hope not. We are all open to impulses, and I think a very philosophical question as to whether it exists in everyone as to any degree is a relative matter. “Q. Doctor, isn’t this entire matter a relative