In 1969 petitioner was indicted, with two others, for rape of
petitioner's wife. Following severance of petitioner's case, he
filed a motion for a continuance so that he might be further
examined and receive psychiatric treatment, attaching thereto the
report of a psychiatrist who had examined him at his counsel's
request and had suggested such treatment. The motion was denied,
and the case proceeded to trial. Petitioner's wife testified,
repeating and confirming information concerning petitioner's
"strange behavior" which was contained in the report and stating
that she had changed her mind about not wanting to prosecute
petitioner because he had tried to kill her on the Sunday prior to
trial. On the second day of the trial, petitioner shot himself in a
suicide attempt and was hospitalized, but, despite his absence, the
trial court denied a motion for a mistrial on the ground that his
absence was voluntary, and the trial continued. The jury returned a
guilty verdict, and petitioner was sentenced to life imprisonment.
His motion for a new trial, asserting that the trial court had
erred in proceeding with the trial when no evidence was produced
that his absence was voluntary, was denied, the trial court finding
again that his absence was voluntary. The Missouri Supreme Court
affirmed, sustaining that finding and also holding that the trial
court's denial of the continuance motion was not an abuse of
discretion. Subsequently, petitioner's motion to vacate the
conviction and sentence, alleging, inter alia,
constitutional rights had been violated by the failure to order a
pretrial psychiatric examination and by completing the trial in his
absence, was denied. The Missouri Court of Appeals affirmed,
holding that neither the psychiatric report attached to
petitioner's motion for a continuance nor his wife's testimony
raised a reasonable doubt of his fitness to proceed, that
petitioner's suicide attempt did not create a reasonable doubt of
his competence as a matter of law, and that he had failed to
demonstrate the inadequacy of the procedures employed for
protecting his rights. The court also held that the
Page 420 U. S. 163
trial court's finding as to voluntary absence was not clearly
1. The Missouri courts failed to accord proper weight to the
evidence suggesting petitioner's incompetence. When considered
together with the information available prior to trial and the
testimony of petitioner's wife at trial, the information concerning
petitioner's suicide attempt created a sufficient doubt of his
competence to stand trial to require further inquiry. Pp.
420 U. S.
2. Whatever the relationship between mental illness and
incompetence to stand trial, in this case, the bearing of the
former on the latter was sufficiently likely that, in light of the
evidence of petitioner's behavior, including his suicide attempt,
and there being no opportunity without his presence to evaluate
that bearing in fact, the correct course was to suspend the trial
until such an evaluation could be made. Pp. 420 U. S.
3. Assuming petitioner's right to be present at the trial was
one that could be waived, there was an insufficient inquiry to
afford a basis for deciding the issue of waiver. P. 420 U. S.
4. Petitioner's due process rights would not be adequately
protected by remanding the case for a psychiatric examination to
determine whether he was, in fact, competent to stand trial in
1969, but the State is free to retry him, assuming that, at the
time of such trial, he is competent to be tried. P. 420 U. S.
498 S.W.2d 838, reversed and remanded.
BURGER, C.J., delivered the opinion for a unanimous Court.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to consider petitioner's
claims that he was deprived of due process of law by the failure of
the trial court to order a psychiatric
Page 420 U. S. 164
examination with respect to his competence to stand trial and by
the conduct in his absence of a portion of his trial on an
indictment charging a capital offense.
In February, 1969, an indictment was returned in the Circuit
Court of St. Louis, Mo., charging petitioner and two others with
the forcible rape of petitioner's wife. Following severance of
petitioner's case from those of the other defendants and a
continuance, on May 27, his counsel filed a motion for a
continuance until September, in order that petitioner might be
examined and receive psychiatric treatment. Treatment had been
suggested by a psychiatrist who had examined petitioner at his
counsel's request and whose report was attached to the motion.
] On the same date,
respondent, through the
Page 420 U. S. 165
Assistant Circuit Attorney, filed a document stating that the
State did not oppose the motion for a psychiatric examination.
Apparently no action was taken on the motion, and petitioner's case
was continued until June 23, at which time his counsel objected to
proceeding with the trial on the ground that he had understood the
case would be continued until September, and consequently was not
prepared. He objected further
"for the reason that the defendant is not a person of sound
mind, and should have a further psychiatric examination before the
case should be forced to trial."
App. 19. The trial judge noted that the motion for a continuance
was not in proper form, and that, although petitioner's counsel had
agreed to file another, he had failed to do so, and he overruled
his objections and directed that the case proceed to trial.
On June 24, a jury was empaneled, and the prosecution called
petitioner's wife as its first witness. She testified that
petitioner participated with four of his acquaintances in forcibly
raping her and subjecting her to other bizarre abuse and
indignities, but that she had resumed living
Page 420 U. S. 166
with him after the incident on the advice of petitioner's
psychiatrist and so that their children would be taken care of. On
cross-examination, she testified that she had told petitioner's
attorney of her belief that her husband was sick and needed
psychiatric care, and that, for these reasons, she had signed a
statement disavowing a desire to prosecute. She related that, on
several occasions when petitioner did not "get his way or [was]
worried about something," he would roll down the stairs. She could
explain such behavior only by relating "what they told him many
times at City Hospital, that is something he does upon hisself
at 47. However, she also stated that
she was not convinced petitioner was sick after talking to his
psychiatrist, and that she had changed her mind about not wanting
to prosecute petitioner because, as she testified, he had "tried to
choke me, tried to kill me" on the Sunday evening prior to trial.
The prosecution called three more witnesses, but did not
conclude its case, before adjournment on June 24. The following
morning, petitioner did not appear. When the trial judge directed
counsel to proceed, petitioner's attorney moved for a mistrial "in
view of the fact that the defendant, I am informed, shot himself
this morning." App. 63. The trial judge denied the motion, stating
that he had already decided the matter would proceed for trial, and
when petitioner's counsel complained of the difficulty of
proceeding without a client, the trial judge replied that the
difficulty was brought about by petitioner, who was on bond and had
a responsibility to be present. The prosecution then called four
more witnesses and, after producing proof of a prior conviction,
] rested its case.
Petitioner's "Motion for Verdict of Acquittal," including,
Page 420 U. S. 167
in effect, a renewal of the motion for a mistrial, was denied,
and his counsel stated that he had "no evidence to produce at this
time under the circumstances." Id.
at 64. The jury
returned a verdict of guilty, and on July 21, 1969, petitioner, who
had been in the hospital for three weeks recovering from a bullet
wound in the abdomen, appeared, and the trial court fixed the
penalty at life imprisonment.
Petitioner filed a motion for a new trial, the burden of which
was that the trial court had erred in proceeding with the trial
when no evidence had been produced that his absence from the trial
was voluntary. A hearing was held before the judge who had presided
at trial. Petitioner testified that, on June 25, he had gone to his
brother's house, and that he remembered nothing concerning the
shooting except that he felt a burning pain in his stomach and
later woke up in the hospital. He testified he did not remember
talking to anyone at the hospital. The State presented evidence
that, upon admission to the hospital, petitioner stated that he had
shot himself because of "some problem with the law,'"
id. at 90, and that he had told a policeman he had shot
himself because "he was supposed to go to court for rape, and he
didn't do it; he rather be [sic] dead than to go to trial
for something he didn't do." Id. at 97. The trial judge
denied the motion. Stating that, on the morning of petitioner's
failure to appear, he had received information on the telephone
which was checked with the hospital, the judge concluded that
petitioner had the burden of showing that his absence was not
voluntary, and found on the basis of the evidence that his absence
"`was due to his own voluntary act in shooting himself; done for
the very purpose of avoiding trial.'" Id. at 103.
The Missouri Supreme Court affirmed, accepting the trial court's
finding, in ruling on petitioner's motion for a
Page 420 U. S. 168
new trial, that his absence was voluntary, [Footnote 3
] and holding that there was "no logical
basis" for positing a different rule with respect to waiver of the
right to be present in capital cases [Footnote 4
] than that which applies in felony cases
generally. 462 S.W.2d
, 683-684. The Missouri Supreme Court also held that the
denial of petitioner's motion for a continuance of the trial in
order to procure further psychiatric evaluation was not an abuse of
discretion, noting that petitioner did not contend that he lacked
the mental capacity to proceed with the trial.
In April, 1971, petitioner filed a motion to vacate the judgment
of conviction and sentence in the court where sentence had been
imposed, pursuant to Missouri Supreme Court Rule 27.26. [Footnote 5
] He alleged that his rights
under Mo.Rev.Stat. § 552.020(2) (1969) [Footnote 6
] and his
Page 420 U. S. 169
constitutional rights had been violated by the failure to order
a psychiatric examination prior to trial and by conducting the
trial to conclusion in his absence. Petitioner also asserted that
he had been denied the effective assistance of counsel, a claim
which is not before us.
In July, 1971, a hearing was held on the motion; petitioner
called two psychiatrists as witnesses. The psychiatrist who had
examined petitioner prior to his trial testified that, in his
opinion, there was reasonable cause to believe that a person who
attempted to commit suicide in the midst of a trial might not be
mentally competent to understand the proceedings against him.
Another psychiatrist, whose duties included the examination of
accused persons under Mo.Rev.Stat. c. 552, testified that, in his
opinion, a man who was charged with raping his wife and attempted
suicide during his trial was in need of a psychiatric evaluation to
find out his mental condition, and that there should be an
evaluation to determine whether the person was competent to assist
in his own defense and whether he was "malingering, or did it
intentionally, or if it was due to a true psychiatric disorder."
App. 156. The same psychiatrist stated that he had examined
petitioner at City Hospital in 1965 and had found that he had
psychiatric problems and was in need of care. Petitioner took the
stand, repeating his previous testimony with respect to the
In June, 1972, the sentencing judge denied petitioner's Rule
27.26 motion, and the Missouri Court of Appeals affirmed. The Court
of Appeals concluded that the provisions for psychiatric
examinations and hearings under Mo.Rev.Stat. § 552.020 (1969)
comported with the requirements
Page 420 U. S. 170
of Pate v. Robinson, 383 U. S. 375
(1966), and that the test of incompetence to stand trial was that
stated in Dusky v. United States, 362 U.
] It reasoned that it was necessary to examine the indicia of
petitioner's incompetence "at three different time before the
trial, during the trial after the suicide attempt, and at the time
of the motion for new trial." 498 S.W.2d 838, 842.
As to the situation before trial, the court held that the
psychiatric report attached to petitioner's motion for a
continuance did not raise a reasonable doubt of his fitness to
proceed. Turning to the second time period, "during the trial after
the suicide attempt," the court held that Pate v. Robinson,
which involved a competence hearing, rather than a
competence examination followed by a hearing, did not require that
the examination and hearing be held during the trial, rather than
immediately thereafter. With regard to the period after trial, and
accepting petitioner's contention that his was a "bona
attempt at suicide," the court was of the view that the
legal significance of the attempt under Robinson
evaluated without resort to the psychiatric testimony presented at
the Rule 27.26 hearing, which was not before the trial judge. It
held that petitioner's suicide attempt did not create a reasonable
doubt of his competence as a matter of law, that petitioner had
failed to demonstrate the inadequacy of the procedures employed for
protecting his rights, and that the finding of the trial court was
not clearly erroneous. [Footnote
Page 420 U. S. 171
Finally, the Missouri Court of Appeals rejected petitioner's
claim that he was deprived of due process of law by the conduct of
a portion of his trial in his absence; it noted that the State
Supreme Court had upheld a finding of voluntary absence on
petitioner's direct appeal, and concluded that the psychiatrists'
testimony at the Rule 27.26 hearing did not meet the burden of
proof placed on petitioner. "Again, we cannot hold the trial
court's finding to be clearly erroneous." 498 S.W.2d at 843. We
granted certiorari, and we now reverse.
It has long been accepted that a person whose mental condition
is such that he lacks the capacity to understand the nature and
object of the proceedings against him, to consult with counsel, and
to assist in preparing his defense may not be subjected to a trial.
Thus, Blackstone wrote that one who became "mad" after the
commission of an offense should not be arraigned for it "because he
is not able to plead to it with that advice and caution that he
ought." Similarly, if he became "mad" after pleading, he should not
be tried, "for how can he make his defense?" 4 W. Blackstone,
Commentaries *24. See Youtsey v. United States,
97 F. 937,
940-946 (CA6 1899). Some have viewed the common law prohibition
"as a by-product of the ban against trials in absentia; the
mentally incompetent defendant, though physically present in the
courtroom, is in reality afforded no opportunity to defend
Foote, A Comment on Pre-Trial Commitment of Criminal Defendants,
108 U.Pa.L.Rev. 832, 834 (1960). See Thomas v. Cunningham,
313 F.2d 934, 938 (CA4 1963). For our purposes, it suffices
Page 420 U. S. 172
to note that the prohibition is fundamental to an adversary
system of justice. See generally
Note, Incompetency to
Stand Trial, 81 Harv.L.Rev. 455, 457-459 (1967). Accordingly, as to
federal cases, we have approved a test of incompetence which seeks
to ascertain whether a criminal defendant
"'has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding -- and whether he has
a rational as well as factual understanding of the proceedings
Dusky v. United States,
362 U.S. at 362 U. S. 402
In Pate v. Robinson, 383 U. S. 375
(1966), we held that the failure to observe procedures adequate to
protect a defendant's right not to be tried or convicted while
incompetent to stand trial deprives him of his due process right to
a fair trial. Although, in Robinson,
we noted that
Illinois "jealously guard[ed] this right," id.
383 U. S. 385
we held that the failure of the state courts to invoke the
statutory procedures deprived Robinson of the inquiry into the
issue of his competence to stand trial to which, on the facts of
the case, we concluded he was constitutionally entitled. The Court
did not hold that the procedure prescribed by Ill.Rev.Stat., c. 38,
§ 102 (1963), was constitutionally mandated, although central to
its discussion was the conclusion that the statutory procedure, if
followed, was constitutionally adequate. See, e.g., United
States v. Knohl,
379 F.2d 427, 434-435 (CA2) , cert.
389 U.S. 973 (1967); United States ex rel. Evans
446 F.2d 782, 785-786 (CA2 1971), cert.
404 U.S. 1020 (1972). Nor did the Court prescribe a
general standard with respect to the nature or quantum of evidence
necessary to require resort to an adequate procedure. [Footnote 9
] Rather, it noted that,
Page 420 U. S. 173
under the Illinois statute, a hearing was required where the
evidence raised a "bona fide doubt'" as to a
defendant's competence, and the Court concluded "that the evidence
introduced on Robinson's behalf entitled him to a hearing on this
issue." 383 U.S. at 383 U. S. 385.
See United States v. Marshall, 458 F.2d 446, 450 (CA2
As was true of Illinois in Robinson,
statutory scheme "jealously guards" a defendant's right to a fair
trial. Missouri Rev.Stat. § 552.020(1) (1969) provides:
"No person who as a result of mental disease or defect lacks
capacity to understand the proceedings against him or to assist in
his own defense shall be tried, convicted or sentenced for the
commission of an offense so long as the incapacity endures."
Section 552.020(2), see n
6, provides that a judge or magistrate shall, "upon his
own motion or upon motion filed by the state or by or on behalf of
the accused," order a psychiatric examination whenever he "has
reasonable cause to believe that the accused has a mental disease
or defect excluding fitness to proceed." Section 552.020(3)
prescribes the contents of a report of the psychiatric examination,
and § 552.030(6) requires the court to hold a hearing if the
opinion relative to fitness to proceed which is required to be
included in the report is contested. In addition, the trial court
may conduct a hearing on its own motion. Such a procedure is, on
its face, constitutionally adequate to protect a defendant's right
not to be tried while legally incompetent. Our task is to determine
whether the proceedings in this case were consistent with
petitioner's right to a fair trial.
Page 420 U. S. 174
At the outset, we are met by respondent's argument that the
Court is bound by "limitations placed on proceedings under"
Missouri Supreme Court Rule 27.26. Brief for Respondent 23.
Specifically, respondent notes that, under Rule 27.26(f),
petitioner had "the burden of establishing his grounds for relief
by a preponderance of the evidence," and that the appellate review
function of the Missouri Court of Appeals was limited by Rule
27.26(j) "to a determination of whether the findings, conclusions
and judgment of the trial court [were] clearly erroneous." It urges
that the Rule was "designed . . . to provide a valuable
post-conviction remedy, and not to provide another direct appeal .
. . ," and expresses concern that "the state-federal relationship .
. . remain in proper balance." Brief for Respondent 22.
We share respondent's concern for this necessary balance, and we
do not question the State's power, in post-conviction proceedings,
to reallocate the respective burdens of the individual and the
State and to delimit the scope of state appellate review. Cf.
Hawk v. Olson, 326 U. S. 271
326 U. S. 279
(1945); Conner v. Wingo,
429 F.2d 630, 637-639 (CA6 1970).
At the same time, we note that, while proceedings under the Rule
"ordinarily cannot be used as a substitute for direct appeal
involving mere trial errors or as a substitute for a second
appeal," nevertheless "trial errors affecting constitutional rights
may be raised even though the error could have been raised on
appeal." Mo.Sup.Ct. Rule 27.26(b)(3).
In the present case, there is no dispute as to the evidence
possibly relevant to petitioner's mental condition that was before
the trial court prior to trial and thereafter. Rather, the dispute
concerns the inferences that were to be drawn from the undisputed
evidence and whether, in light of what was then known, the failure
to make further inquiry into petitioner's competence to
Page 420 U. S. 175
stand trial, denied him a fair trial. In such circumstances, we
believe it is "incumbent upon us to analyze the facts in order that
the appropriate enforcement of the federal right may be assured."
Norris v. Alabama, 294 U. S. 587
294 U. S. 590
(1935). [Footnote 10
"When the corrective process is provided by the state but error,
in relation to the federal question of constitutional violation,
creeps into the record, we have the responsibility to review the
Hawk v. Olson, supra,
at 326 U. S.
The sentencing judge and the Missouri Court of Appeals concluded
that the psychiatric evaluation of petitioner attached to his
pretrial motion for a continuance did not contain sufficient
indicia of incompetence to stand trial to require further inquiry.
Both courts mentioned aspects of the report suggesting competence,
such as the impressions that petitioner did not have "any
delusions, illusions, hallucinations . . . ," was "well oriented in
all spheres," and "was able, without trouble, to answer questions
testing judgement," but neither court mentioned the contrary data.
The report also showed that petitioner, although cooperative in the
examination, "had difficulty in participating well," "had a
Page 420 U. S. 176
time relating," and that he "was markedly circumstantial and
irrelevant in his speech." In addition, neither court felt that
petitioner's episodic irrational acts described in the report or
the psychiatrist's diagnoses of "[b]orderline mental deficiency"
and "[c]hronic [a]nxiety reaction with depression" created a
sufficient doubt of competence to require further inquiry.
It does not appear that the examining psychiatrist was asked to
address himself to medical facts bearing specifically on the issue
of petitioner's competence to stand trial, as distinguished from
his mental and emotional condition generally. Thus, it is not
surprising that, before this Court, the dispute centers on the
inferences that could or should properly have been drawn from the
report. Even where the issue is in focus, we have recognized "the
uncertainty of diagnosis in this field and the tentativeness of
professional judgment." Greenwood v. United States,
350 U. S. 366
350 U. S. 375
(1956). Here, the inquiry is rendered more difficult by the fact
that a defendant's mental condition may be relevant to more than
one legal issue, each governed by distinct rules reflecting quite
different policies. See Jackson v. Indiana, 406 U.
, 406 U. S. 739
(1972); Pate v. Robinson,
383 U.S. at 383 U. S.
-389 (Harlan, J., dissenting); Weihofen, The
Definition of Mental Illness, 21 Ohio St.L.J. 1 (1960).
Like the report itself, the motion for a continuance did not
clearly suggest that petitioner's competence to stand trial was the
question sought to be resolved. While we have expressed doubt that
the right to further inquiry upon the question can be waived,
see Pate v. Robinson,
383 U.S. at 383 U. S. 384
it is nevertheless true that judges must
Page 420 U. S. 177
depend to some extent on counsel to bring issues into focus.
Petitioner's somewhat inartfully drawn motion for a continuance
probably fell short of . appropriate assistance to the trial court
in that regard. However, we are constrained to disagree with the
sentencing judge that counsel's pretrial contention that "the
defendant is not a person of sound mind, and should have a further
psychiatric examination before the case should be forced to trial,"
did not raise the issue of petitioner's competence to stand trial.
] This statement
also may have tended to blur the aspect of petitioner's mental
condition which would bear on his criminal responsibility and that
which would bear on his competence to stand trial. However, at that
stage, and with the obvious advantages of hindsight, it seems to us
that it would have been, at the very least, the better practice to
order an immediate examination under Mo.Rev.Code § 552.020(2)
(1969). [Footnote 13
Page 420 U. S. 178
is unnecessary for us to decide whether such examination was
constitutionally required on the basis of what was then known to
the trial court since, in our view, the question was settled by
Turning to the situation at petitioner's trial, the state courts
viewed the evidence as failing to show that, during trial
petitioner had acted in a manner that would cause the trial court
to doubt his competence. The testimony of petitioner's wife, some
of which repeated and confirmed information contained in the
psychiatric evaluation attached to petitioner's motion for a
continuance, was given little weight. [Footnote 14
] Finally, the sentencing judge, relying on
his finding on petitioner's motion for a new trial and although
stating "that it does not take a psychiatrist to know that such a
man has a problem and indicates poor judgment," App. 203, concluded
that the "fact that Mr. Drope shot himself to avoid trial suggests
Page 420 U. S. 179
strongly an awareness of what was going on." Id.
208. The Missouri Court of Appeals, accepting arguendo
petitioner's contention that his was "a bona fide
at suicide," refused to conclude "that as a matter of law an
attempt at suicide creates a reasonable doubt as to the movant's
competency to stand trial." Id.
Notwithstanding the difficulty of making evaluations of the kind
required in these circumstances, we conclude that the record
reveals a failure to give proper weight to the information
suggesting incompetence which came to light during trial. This is
particularly so when viewed in the context of the events
surrounding petitioner's suicide attempt and against the background
of the pretrial showing. Although a defendant's demeanor during
trial may be such as to obviate "the need for extensive reliance on
psychiatric prediction concerning his capabilities," Note, 81
Harv.L.Rev. at 469, we concluded in Pate v. Robinson,
U.S. at 383 U. S.
-386, that "this reasoning offers no justification
for ignoring the uncontradicted testimony of . . . [a] history of
pronounced irrational behavior." We do not mean to suggest that the
indicia of such behavior in this case approximated those in
but we believe the Missouri courts failed to
consider and give proper weight to the record evidence. Too little
weight was given to the testimony of petitioner's wife that, on the
Sunday prior to trial, he tried to choke her to death. For a man
whose fate depended in large measure on the indulgence of his wife,
who had hesitated about pressing the prosecution, this hardly could
be regarded as rational conduct. [Footnote 15
] Moreover, in considering the indicia of
Page 420 U. S. 180
incompetence separately, the state courts gave insufficient
attention to the aggregate of those indicia in applying the
objective standard of Mo.Rev.Stat. § 552.020(2). We need not
address the Court of Appeals' conclusion that an attempt to commit
suicide does not create a reasonable doubt of competence to stand
trial as a matter of law. As was true of the psychiatric
evaluation, petitioner's attempt to commit suicide "did not stand
alone." Moore v. United States,
464 F.2d 663, 666 (CA9
1972). We conclude that, when considered together with the
information available prior to trial and the testimony of
petitioner's wife at trial, the information concerning petitioner's
suicide attempt created a sufficient doubt of his competence to
stand trial to require further inquiry on the question.
The import of our decision in Pate v. Robinson
evidence of a defendant's irrational behavior, his demeanor at
trial, and any prior medical opinion on competence to stand trial
are all relevant in determining whether further inquiry is
required, but that even one of these factors, standing alone may,
in some circumstances, be sufficient. There are, of course, no
fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is
often a difficult one in which a wide range of manifestations and
subtle nuances are implicated. That they are difficult to evaluate
is suggested by the varying opinions trained psychiatrists can
entertain on the same facts.
Here, the evidence of irrational behavior prior to trial was
weaker than in Robinson,
but there was no opinion evidence
as to petitioner's competence to stand trial. See n
was present throughout his trial; petitioner was absent for a
crucial portion of his
Page 420 U. S. 181
trial. Petitioners absence bears on the analysis in two ways:
first, it was due to an act which suggests a rather substantial
degree of mental instability contemporaneous with the trial,
see Pate v. Robinson,
383 U.S. at 383 U. S. 389
(Harlan, J., dissenting); [Footnote 16
] second, as a result of petitioner's absence
the trial judge and defense counsel were no longer able to observe
him in the context of the trial and to gauge from his demeanor
whether he was able to cooperate with his attorney and to
understand the nature and object of the proceedings against
Even when a defendant is competent at the commencement of his
trial, a trial court must always be alert to circumstances
suggesting a change that would render the accused unable to meet
the standards of competence to stand trial. Whatever the
relationship between mental illness and incompetence to stand
trial, in this case, the bearing of the former on the latter was
sufficiently likely that, in light of the evidence of petitioner's
behavior, including his suicide attempt, and there being no
opportunity without his presence to evaluate that bearing in fact,
the correct course was to suspend the trial until such an
evaluation could be made. [Footnote 17
] That this might have
Page 420 U. S. 182
aborted the trial is a hard reality, but we cannot fail to note
that such a result might have been avoided by prompt psychiatric
examination before trial, when it was sought by petitioner.
Our resolution of the first issue raised by petitioner makes it
unnecessary to decide whether, as he contends, it was
constitutionally impermissible to conduct the remainder of his
trial on a capital offense in his enforced absence from a
self-inflicted wound. See Diaz v. United States,
223 U. S. 442
223 U. S. 445
(1912). However, even assuming the right to be present was one that
could be waived, what we have already said makes it clear that
there was an insufficient inquiry to afford a basis for deciding
the issue of waiver. Cf. Westbrook v. Arizona,
384 U. S. 150
(1966); United States v. Silva,
418 F.2d 328 (CA2
The Missouri Court of Appeals concluded that, had further
inquiry into petitioner's competence to stand trial been
constitutionally mandated in this case, it would have been
permissible to defer it until the trial had been completed. Such a
procedure may have advantages, at least where the defendant is
present at the trial and the appropriate inquiry is implemented
with dispatch. See
Note, 81 Harv.L.Rev. at 469;
Hansford v. United States,
127 U.S.App.D.C. 359, 360, 384
F.2d 311, 312 (1966) (rehearing en banc denied) (statement of
Leventhal, J.); Jackson v. Indiana,
406 U.S. at
406 U. S. 741
However, because of petitioner's absence during a critical stage of
his trial, neither the judge nor counsel was able to observe him,
and the hearing on his motion for a new trial, held approximately
three months after the trial, was not informed by an inquiry into
either his competence to stand
Page 420 U. S. 183
trial or his capacity effectively to waive his right to be
The question remains whether petitioner' due process rights
would be adequately protected by remanding the case now for a
psychiatric examination aimed at establishing whether petitioner
was, in fact, competent to stand trial in 1969. Given the inherent
difficulties of such a nunc pro tunc
the most favorable circumstances, see Pate v. Robinson,
383 U.S. at 383 U. S.
-387; Dusky v. United States,
362 U.S. at
362 U. S. 403
cannot conclude that such a procedure would be adequate here.
Cf. Conner v. Wingo,
429 F.2d at 639-640. The State is
free to retry petitioner, assuming, of course, that, at the time of
such trial, he is competent to be tried.
The judgment is reversed, and the cause is remanded for
proceedings not inconsistent with this opinion.
Reversed and remanded.
The motion recites:
"Comes now the Defendant, JAMES E. DROPE, and states to the
court that he has had a psychiatric examination made by Dr. Joseph
F. Shuman, M.D., a copy of which report is attached hereto."
"Defendant moves the court to continue his case until September,
1969, in order that he might receive an Examination, Evaluation and
psychiatric treatment, as suggested by Dr. Shuman, at the Malcomb
Bliss Hospital in the City of St. Louis, Missouri."
The report, in the form of a letter to petitioner's attorney,
states that the psychiatrist examined petitioner on February 20,
1969. In a section entitled "Past Medical History," it describes
petitioner as "markedly agitated and upset," noting that he
"appeared to be cooperative in this examination, but he had
difficulty in participating well." The report continues:
"The patient had a difficult time relating. He was markedly
circumstantial and irrelevant in his speech. . . . There was no
sign as to the presence of any delusions, illusions,
hallucinations, obsessions, ideas of reference, compulsions or
phobias at this time."
"In a simple IQ exam, Mr. Drope was able to achieve a score in
the low normal range. . . . Mr. Drope was well oriented in all
spheres. With much difficulty, he was able to explain a few
abstractions. . . . He was able, without trouble, to answer
questions testing judgement. He had much difficulty even doing the
simple counting and calculation problems."
The report then recounts the details of a conversation between
the psychiatrist and petitioner's wife. The latter admitted that
she had left petitioner on a number of occasions because of his
sexual perversions, and described the "strange behavior" of
petitioner, including falling down flights of stairs, as an attempt
to gain sympathy from her. In a section entitled "Impression," the
report states that petitioner had "always led a marginal
existence," that he had a "history of anti-social conduct," but
that there were no "strong signs of psychosis at this time." It
concludes that petitioner "certainly needs the aid of a
psychiatrist," and that he "is a very neurotic individual who is
also depressed, and perhaps he is depressed for most of the time,"
and it offers as diagnoses: "(1) Sociopathic personality disorder,
sexual perversion. (2) Borderline mental deficiency. (3) Chronic
Anxiety reaction with depression."
Petitioner was tried as second offender under Mo.Rev.Stat. §
556.280 (1969), having been convicted in 1958 of second-degree
burglary and "stealing."
As to the situation at trial, the Missouri Supreme Court
"We disagree with defendant's contention that there is 'no
evidence upon the record' that he voluntarily absented himself. The
court made such a determination before proceeding with the trial,
although the basis for that determination is not fully disclosed.
However, when defendant is free on bond, and he does not appear at
the appointed time, it is presumed that the absence is voluntary
until established otherwise."
, 681 (1971).
At the time of petitioner's trial, rape was punishable by death
under Mo.Rev.Stat. § 559.260 (1969), and respondent had not waived
the death penalty.
A petition for a writ of habeas corpus previously filed in the
United States District Court for the Eastern District of Missouri
had been dismissed without prejudice on April 1, 1971, for failure
to exhaust available state remedies. See
28 U.S.C. §§
Subdivision 2 of § 552.020 provides in pertinent part:
"Whenever any judge or magistrate has reasonable cause to
believe that the accused has a mental disease or defect excluding
fitness to proceed he shall, upon his own motion or upon motion
filed by the state or by or on behalf of the accused, by order of
record, appoint one or more private physicians to make a
psychiatric examination of the accused or shall direct the
superintendent of a facility of the division of mental diseases to
have the accused so examined by one or more physicians whom the
superintendent shall designate."
Subdivision 3 delineates the requirements for reports of
psychiatric examinations, and subdivision 6 requires the court to
hold a hearing if the opinion relative to fitness to proceed which
is required to be included in the report is contested.
"[T]he 'test must be 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 factual
understanding of the proceedings against him.'"
Mo.Rev.Stat. § 552.020(1) (1969).
Under Missouri Supreme Court Rule 27.26(f) (1969), the "prisoner
has the burden of establishing his grounds for relief by a
preponderance of the evidence." Appellate review is limited under
Rule 27.26(j) "to a determination of whether the findings,
conclusions and judgment of the trial court are clearly
In discussing the evidence adduced at Robinson's trial, the
Court did, however, indicate that a history of irrational behavior
is a relevant factor which, on the record before it, was sufficient
to require further inquiry notwithstanding Robinson's demeanor at
trial and the stipulated opinion of a psychiatrist that Robinson
knew the nature of the charges against him and could cooperate with
counsel when the psychiatrist examined him two or three months
before. See infra
"But 'issue of fact' is a coat of many colors. It does not cover
a conclusion drawn from uncontroverted happenings, when that
conclusion incorporates standards of conduct or criteria for
judgment which in themselves are decisive of constitutional rights.
Such standards and criteria, measured against the requirements
drawn from constitutional provisions, and their proper
applications, are issues for this Court's adjudication. . . .
Especially in cases arising under the Due Process Clause, is it
important to distinguish between issues of fact that are here
foreclosed and issues which, though cast in the form of
determinations of fact, are the very issues to review which this
Watts v. Indiana, 338 U. S. 49
338 U. S. 51
(1949) (opinion of Frankfurter, J.). See also Culombe v.
Connecticut, 367 U. S. 568
367 U. S. 605
(1961) (opinion of Frankfurter, J.).
The Court of Appeals determined that the other
diagnosis offered, "[s]ociopathic personality disorder, sexual
perversion," was excluded as a "mental disease or defect" under
Missouri law. See
Mo.Rev.Stat. § 552.010 (1969).
In a colloquy with the trial judge, petitioner's counsel noted
that the examination and evaluation "could be done during the
summer months and be ready for trial or else the examination
would eliminate trial by September.
" App. 17. (Emphasis
The sentencing judge observed that "motions for psychiatric
examinations have often been made merely for the purpose of delay,"
and "estimated that almost seventy-five percent of those sent for
psychiatric examinations are returned mentally competent." App.
202. Although we do not, of course, suggest that courts must accept
without question a lawyer's representations concerning the
competence of his client, see United States ex rel. Rizzi v.
367 F.2d 559, 561 (CA2 1966), an expressed doubt in
that regard by one with "the closest contact with the defendant,"
Pate v. Robinson, 383 U. S. 375
383 U. S. 391
(1966) (Harlan, J., dissenting), is unquestionably a factor which
should be considered. Moreover, resolution of the issue of
competence to stand trial at an early date best serves both the
interests of fairness, see Peyton v. Rowe, 391 U. S.
, 391 U. S. 62
(1968), and of sound judicial administration. See
Recognizing and Determining Mental Competency to Stand Trial --
Insanity as a Defense, in Institutes on Sentencing, 37 F.R.D. 111,
155, 161 (1964). Realization of those facts may have prompted the
practice, noted by the sentencing court,
"of the Circuit Attorney at the time to consent in all cases to
a psychiatric examination whether with or without merit and without
looking into the matter further."
The sentencing court noted:
"She did testify in answer to the question 'And at that time,
didn't you tell me that you felt your husband was sick, and needed
psychiatric care?' The answer: 'Yes.' There was also some evidence
of disputes and trouble accompanied by some physical force between
husband and wife, but not to the extent to indicate inability to
understand the proceedings. There was no recitation of facts upon
which a layman could base the opinion that the defendant was insane
except the testimony perhaps that he rolled down the steps but this
occurred only two or three times over a period of eight or nine or
App. 201. The Court of Appeals dealt with her testimony only
insofar as it repeated information in the psychiatric evaluation.
It concluded that her feelings that petitioner had mental problems
"bore on his sexual perversions -- not his competency," and that
the stairs episodes "demonstrate[d] pique more than anything." 498
S.W.2d at 842.
It appears that, under Mo.Rev.Stat. § 546.260 (1969)
petitioner's wife could not be compelled to testify against him.
See State v. Dunbar,
360 Mo. 788, 230 S.W.2d
(1950). Similarly, neither court mentioned Mrs. Drope's
testimony concerning petitioner's consultations at City Hospital.
At the Rule 27.26 hearing, it will be recalled, a psychiatrist
testified that he had examined petitioner at City Hospital in 1965
and had determined that he was in need of psychiatric care.
We assume, as did the Missouri Court of Appeals, that
petitioner's was a "bona fide" suicide attempt, rather than, as
respondent contends, malingering. In that regard, the hearsay
information in the possession of the trial judge when he denied the
motion for a mistrial suggested an intent on the part of petitioner
to kill himself, and a self-inflicted wound near vital organs does
not suggest malingering. Of course, we also recognize that "the
empirical relationship between mental illness and suicide" or
suicide attempts is uncertain, and that a suicide attempt need not
always signal "an inability to perceive reality accurately, to
reason logically and to make plans and carry them out in an
organized fashion." Greenberg, Involuntary Psychiatric Commitments
to Prevent Suicide, 49 N.Y.U.L.Rev. 227, 234, 236 (1974). See
Pokorny, Myths about Suicide, in Suicidal Behaviors 64-65
(H. Resnik ed.1968).
In reaching this conclusion, we have not relied on the testimony
of the psychiatrists at the Rule 27.26 hearing, which, we agree
with the Missouri Court of Appeals, is not relevant to the question