LUCERO, Circuit Judge.
Billy Keith McGregor was convicted under Oklahoma law of first-degree murder and sentenced to death. A panel of this Court affirmed the district court's denial of habeas relief to McGregor. We subsequently granted rehearing en banc to review our standard for assessing procedural competency claims. This standard is of particular importance in the aftermath of the Supreme Court's unanimous decision in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), holding unconstitutional the Oklahoma law requiring criminal defendants to prove incompetency to stand trial by clear and convincing evidence.
McGregor was convicted by an Oklahoma jury of murdering Virgie Plumb, the owner of a home in which he was a boarder. The victim disappeared on May 22, 1983, and was last seen as a passenger in her own car driven by McGregor.
The day after Plumb's disappearance, McGregor attempted to sell an antique clock and a car, both of which belonged to the victim. The following day he cashed a check allegedly written to him by the victim. Later that day, a second similar check was rejected for insufficient funds, and McGregor went to the police to report the "bad check."
In the following days, McGregor related several different stories to people about his interactions with the victim. He told some that he had taken her to her brother's home and others that he had taken her to a convenience store and when he came to pick her up she was gone. After interviews with the police, McGregor confessed to killing Plumb and leaving her body in a wooded rural area.
McGregor was convicted by a jury of first-degree murder and sentenced to death. Pursuant to the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), McGregor's conviction and death sentence were reversed by the Oklahoma Court of Criminal Appeals. McGregor v. Oklahoma, 754 P.2d 1216, 1218 (Okla.Crim.App. 1988) (holding that McGregor was entitled to a court-appointed psychiatrist because a "[s]ufficient showing [was] ... made to reflect that appellant's sanity at the time of the offense [might] be a significant factor at trial").
In 1989, McGregor was tried again for the murder of Plumb and raised the defense of not guilty by reason of insanity. The jury rejected his defense and, for the second time, convicted him of first-degree murder. At sentencing, the jury found aggravating circumstances and sentenced McGregor to death. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed McGregor's conviction and death sentence. McGregor v. Oklahoma, 885 P.2d 1366 (Okla.Crim.App. 1994).
Before McGregor's second trial, a competency proceeding was held and a jury found McGregor competent to stand trial. At that proceeding, the jury was instructed that McGregor had to prove incompetency by clear and convincing evidence.
On appeal, a panel of this Court affirmed the district court's denial of habeas relief under 28 U.S.C. § 2254. McGregor v. Gibson, 219 F.3d 1245 (10th Cir.2000). The panel was divided; Judge Murphy filed a dissenting opinion expressing his disagreement with the "majority's resolution of McGregor's procedural competency claim." Id. at 1257. We granted en banc review to consider this important issue: When may a defendant found competent to stand trial under an unconstitutional "clear and convincing evidence" burden of proof and then convicted succeed in habeas on a procedural competency claim?
II. Standard of Review
Because McGregor filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that Act govern this appeal. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Inasmuch as the state court did not hear the merits of petitioner's claim and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its factual findings for clear error. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999). "If the district court's factual findings are based only on a review of the state court record, we conduct an independent review." Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir.2000) (citation omitted).
III. Competency to Stand Trial
It is well-settled that the "criminal trial of an incompetent defendant violates due process." Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). This "prohibition is fundamental to an adversary system of justice." Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The rule, rooted in the common law, is likely 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 himself." Id. at 171, 95 S.Ct. 896 (quoting Foote, A Comment on
The test for determining competency to stand trial is well-established. The trier of fact must consider "whether [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 against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). "That defendant can recite the charges against [him], list witnesses, and use legal terminology are insufficient" to demonstrate that he had a rational, as well as factual, understanding of the proceedings. United States v. Williams, 113 F.3d 1155, 1159 (10th Cir.1997).
"[C]ompetency claims can raise issues of both substantive and procedural due process." Walker v. Att'y Gen., 167 F.3d 1339, 1343 (10th Cir.1999). A procedural competency claim is based upon a trial court's alleged failure to hold a competency hearing, or an adequate competency hearing, while a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent. Id. at 1343-44. Accordingly, an individual raising a procedural competency claim is held to a lower burden of proof than one raising a substantive competency claim. See id. at 1344.
At issue in this appeal is McGregor's procedural competency claim rooted in his Fourteenth Amendment right to due process of law. Because the conviction of an accused person while legally incompetent violates due process, states must provide adequate procedures to protect accused individuals. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The burden of providing these procedures persists throughout trial; thus, "[e]ven 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." Drope, 420 U.S. at 181, 95 S.Ct. 896.
B. Procedural Incompetency Claims After
McGregor's claim is one of many procedural incompetency claims this Court has reviewed in the wake of the Supreme Court's decision in Cooper. See, e.g., Walker v. Gibson, 228 F.3d at 1226-29; Valdez v. Ward, 219 F.3d 1222, 1239-41 (10th Cir.2000); Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 567-68 (10th Cir.2000); Clayton v. Gibson, 199 F.3d 1162, 1168-72 (10th Cir.1999); Barnett v. Hargett, 174 F.3d 1128, 1133-36 (10th Cir. 1999); Rogers v. Gibson, 173 F.3d 1278, 1289-91 (10th Cir.1999); Walker v. Att'y Gen., 167 F.3d at 1342-47. We have held repeatedly that when a criminal defendant's competency was determined under an unconstitutional burden of proof, the prior competency determination merits no presumption of correctness. See, e.g., Walker v. Gibson, 228 F.3d at 1227; Van Woudenberg, 211 F.3d at 567 n. 5; Clayton, 199 F.3d at 1171; Barnett, 174 F.3d at 1135; Walker v. Att'y Gen., 167 F.3d at 1345. Under such circumstances, this
Although it is clear that to prevail on a procedural due process competency claim a petitioner must raise a bona fide doubt regarding his competency to stand trial at the time of conviction,
Today we are faced with the task of enunciating a single meaningful standard for assessing procedural competency claims in cases in which the trial court attempted — but failed — to protect an accused's due process rights by assessing his competency to stand trial under an unconstitutional burden of proof. In so doing, we must be careful not to collapse the distinction between procedural and substantive due process by raising the level of proof required for procedural competency
Accordingly, we hold that to prevail on a procedural competency claim after a trial in which a petitioner was found competent under an unconstitutional burden of proof, the petitioner must establish that a reasonable judge should have had a bona fide doubt as to his competence at the time of trial. We view the evidence in the record objectively, from the standpoint of a reasonable judge presiding over petitioner's case at the time of trial. A petitioner establishes a bona fide doubt if he shows that a reasonable judge should have doubted whether petitioner had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and whether petitioner had "a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402, 80 S.Ct. 788. We stress that the due process requirement is continuing; a defendant must be competent throughout the entire trial. See Drope, 420 U.S. at 171-72, 181, 95 S.Ct. 896.
To prevail on a procedural competency claim petitioner need not establish facts sufficient to show he was actually incompetent or to show he was incompetent by a preponderance of the evidence. However, the mere fact that the trial court granted a competency hearing will not suffice to demonstrate a bona fide doubt. Although we treat the trial as if no competency hearing was held, see Van Woudenberg, 211 F.3d at 567 n. 5, we consider the record of, and the evidence presented during, the competency hearing.
We realize that
Drope, 420 U.S. at 180, 95 S.Ct. 896. That said, we look to longstanding precedent for guidance regarding the factors to be considered in assessing a petitioner's procedural competency claim. "[E]vidence of ... irrational behavior, ... demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required." Drope, 420 U.S. at 180, 95 S.Ct. 896; see also Walker v. Gibson, 228 F.3d at 1227; Valdez, 219 F.3d at 1240; Van Woudenberg, 211 F.3d at 567; Clayton, 199 F.3d at 1171 (emphasizing that prior medical opinions regarding petitioner's competency are "perhaps most important"); Wallace, 191 F.3d at 1243; Rogers, 173 F.3d at 1290; Walker v. Att'y Gen., 167 F.3d at 1346. "Other relevant factors include evidence of mental illness and any representations of defense counsel about the defendant's incompetence." Walker v.. Gibson, 228 F.3d at 1227 (citation omitted); see also Drope, 420 U.S. at 177 n. 13, 95
We emphasize that assessment of a procedural competency claim requires us to form a judgment on the aggregate not the segment. We examine the totality of the circumstances: all evidence should be considered together, no single factor "stand[s] alone." Drope, 420 U.S. at 180, 95 S.Ct. 896 (quotation omitted). The question is not, as we have sometimes stated, whether the trial court "ignored facts," see, e.g., Van Woudenberg, 211 F.3d at 567, but rather whether the trial court "fail[ed] to give proper weight to the information suggesting incompetence which came to light during trial." Drope, 420 U.S. at 179, 95 S.Ct. 896.
C. McGregor's Competency to Stand Trial
After careful review of the record we conclude that McGregor's procedural due process rights were violated. A reasonable judge should have had a bona fide doubt concerning McGregor's continued competency to stand trial in light of the inconsistent evidence concerning whether McGregor was properly medicated throughout trial, counsel's repeated and vehement contentions that his client was unable to assist in his own defense, McGregor's odd behavior at trial and, of course, McGregor's substantial history of mental illness. Our conclusion is based on the totality of the circumstances, and we do not state an opinion as to petitioner's actual competency to stand trial. Although the state could successfully argue that petitioner was properly medicated or provide a plausible explanation for his seemingly odd behavior at trial, we recognize that hindsight is 20/20 and that our job is to view the record from the standpoint of a reasonable judge at the time of trial who could not, and did not, benefit from such ex post explanations.
1. Mental Health: Proper Medication
The evidence unquestionably shows that McGregor has a long and tortured history of mental illness. (See, e.g., VIII Second Trial Tr. at 246, Testimony of Dr. Brauchitsch ("The records, without exception, gave a very thorough and very serious history of mental illness. As a matter of fact, probably more than one mental illness. But, on one they all seemed to agree, that the patient did seem to suffer from a psychosis, severe type of mental illness in which he suffered from delusions, hallucinations, hearing imaginary voices, feeling that people could read his mind in a delusional way and could influence his actions and the like.").) At trial, Dr. Brauchitsch, a psychiatrist, testified that McGregor's mental illness was likely related to complications during his birth involving oxygen deprivation which resulted in brain damage. McGregor has been diagnosed consistently with schizophrenia, paranoid type, and with anti-social personality disorder.
As established at the competency trial, McGregor continues to experience blackout spells and delusional symptoms. At times he hears voices telling him to do things. Many years ago he was shot in the head four times and some bullet fragments remain lodged in his head.
The prosecution presented the testimonies of a psychiatrist and a psychologist at the 1988 competency trial. The psychiatrist, Dr. Lanier, testified McGregor was competent to stand trial prior to his first trial in 1983. Dr. Lanier's testimony was drawn solely from the medical records of another doctor, Dr. Garcia (deceased), whose evaluation of McGregor occurred five years prior to Dr. Lanier's testimony. Dr. Garcia's 1983 medical opinion stated McGregor was paranoid schizophrenic, yet competent to stand trial so long as "he continue[d taking 400 milligrams of Mellaril a day] to retain his present degree of stability." (Id. at 150, 156.) The state's second witness, psychologist Bill Gentry, examined McGregor for forty-five minutes on July 25, 1988, three months prior to the competency trial. Dr. Gentry testified "I felt like on the day that I interviewed him he was competent to stand trial." (Id. at 179) He further testified that he had no opinion as to McGregor's competence to stand trial on the date of the competency proceeding. His report on McGregor stated "[t]hat schizophrenic symptoms appear in remission at this time and I feel that is due primarily to the effects of the medication." (Id. at 187)
The evidence presented at the competency proceeding and at McGregor's second criminal trial was that McGregor was legally competent so long as he remained properly medicated. (See, e.g., id. at 150-56, Testimony of Dr. Lanier (finding McGregor competent to stand trial in 1983 if "he continue[d taking 400 milligrams of Mellaril a day] to retain his present degree of stability"); id. at 187, Testimony of Dr. Gentry (stating that "schizophrenic symptoms appear in remission at this time and I feel that is due primarily to the effects of the medication"); VIII Second Trial Tr. at 197, Testimony of Dr. Goodman ("[W]hen [McGregor] is in a structured, supervised situation and takes his medication ... he's probably not going to show any psychotic signs.").) Importantly, McGregor's continued proper medication was called into doubt multiple times at trial. On day two of trial, McGregor complained of an extreme headache, and counsel told the court McGregor's dosage of Thorazine had been changed. On the morning of day three, McGregor's counsel again informed the court that McGregor's dosage had been changed and asked to call the penitentiary to find out the proper prescription. In the afternoon, McGregor's counsel asked for, and was granted, an ex parte hearing on McGregor's "sanity." (III Second Trial Tr. at 97.) Two days later, on the morning of the fifth day of trial, the court noted on the record that the sheriff had told him McGregor refused to take his Thorazine. Later that afternoon, McGregor did take his medicine which he claimed made him drowsy. Accordingly, McGregor remained in his cell so he could sleep and requested that the jailer wake him up at 2:30 p.m. to
Although each incident calling into question McGregor's continued medication might be explained such that it is not individually troubling, considered together, all of the incidents call into doubt McGregor's receipt of proper medication throughout his trial. Given the expert testimony that McGregor's competency depended on his proper medication, along with counsel's assessment of McGregor's competency and McGregor's behavior discussed below, the trial judge should have experienced doubt as to petitioner's competency to stand trial.
We consider the trial court's failure to notice changes in McGregor's behavior inconclusive. The test for competency is "whether [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 against him." Dusky, 362 U.S. at 402, 80 S.Ct. 788. In finding McGregor's behavior was not different as a result of the alleged change in medications, the court did not find McGregor had been rationally consulting with his attorney as required to demonstrate competency; rather, the court seemed to find only that McGregor had not engaged in any inappropriate outbursts at trial. Several times, the trial judge implied he was unable to assess McGregor's behavior as well as counsel because "I haven't had to be seated next to him throughout the trial." (IX Second Trial Tr. at 125; see also v. id. at 131 ("He doesn't seem any different to me today than he's been any other day I've seen him. I can honestly say that. Of course, I don't sit next to him at Counsel table; so I can't answer for that.").)
We also consider unconvincing the state's citation to its own statement in the record, based on hearsay from someone at the penitentiary, that "it would take potentially two weeks of not taking any [psychotropic] medication ... for it to show up in any behavioral problems of the defendant." (III id. at 13.) The state's argument that there was no material change in petitioner's Thorazine dosage as evidenced by the fact that his counsel, in the ex parte hearing on McGregor's "sanity," focused on the jail's failure to give McGregor Motrin for his headaches bears weight.
The above-mentioned problems with McGregor's medications are exacerbated by the change in the type of psychotropic medications he took. The record establishes that at the time of Dr. Garcia's competency opinion on October 17, 1983, before the first trial,
2. Demeanor at Trial
Accompanying the doubts raised about McGregor's proper medication throughout
As with medications, although any one incident may be explained ex post, the sum total of the evidence demonstrates a question as to McGregor's competency at trial, The state argues, that McGregor's basketball statement was not surprising when viewed in context in which it was made, i.e., after the voir dire of a high school coach. Moreover, it argues that McGregor had a known propensity for joking. We find the argument that the statement made sense in the context of the trial unconvincing, particularly in light of the court reporter's note, immediately after McGregor's statement, that "[t]hereupon, there was a brief pause in the proceedings." (I id. at 227.) If the statement were usual, it would not have merited a pause in the proceedings which the reporter felt necessary to record. The dubious evidence concerning McGregor's medication at trial, coupled with McGregor's odd behavior, and his counsel's concerns discussed below, augments our conclusion that a reasonable judge should have had a doubt about Mc McGregor's ability to aid in his defense and to understand the nature of the proceedings.
3. Counsel's Concerns
The final piece of the picture, and perhaps the most important, is Irven Box's — McGregor's trial counsel's — frequent assertions on the record that McGregor was incompetent. "Although we do not ... suggest that courts must accept without question a lawyer's representations concerning the competence of his client ... an expressed doubt in that regard by one with the closest contact with the defendant ... is unquestionably a factor which should be considered." Drope, 420 U.S. at 178 n. 13, 95 S.Ct. 896 (internal quotations and citations omitted). We have stated that although "the concerns of counsel alone are insufficient to establish
At the competency trial, Box testified McGregor was unable to assist in his own defense in large part because he was unable to focus and he did not understand the nature of the charges against him.
(IX id. at 126-27.) Finally, Box stated that "I have not ever dealt, in my career, with someone like this person." (Id. at 124.) Although the court noted defendant had not been disruptive during trial, the court had defendant put in the law library with the door open so he could hear the verdict read but could not make a scene in front of the jury.
The state tries to undermine the significance of Box's assessment of McGregor's competency. In its brief, the state argues that McGregor's competency was demonstrated by his testimony, on his own behalf, at a suppression hearing. Even were we to credit the state's interpretation of that event, the due process requirement of competency continues throughout trial; one instant of demonstrable competency on McGregor's part does not overshadow the numerous occasions, occurring before and after McGregor's testimony, in which his competency was called into doubt. The state also argues that Box's testimony at the competency trial was "effectively rebutted by the State's witnesses during that hearing and Petitioner was found competent." (Appellee's Supp. Br. at 19.) The "found competent" aspect of the argument is circuitous in that it would have us credit the outcome of an unconstitutional competency trial and, moreover, Box's statements about McGregor's competency to stand trial are examined in the context of the further evidence of incompetency that arose during trial. The state writes off petitioner's threats to disrupt trial because "the record is devoid of even one incident where petitioner was disruptive or engaged in outrageous conduct." (Id. at 19.) But McGregor's continued threats of disruption, although never carried to fruition, must be read as evidence of his inability to assist in his defense. Moreover, the threat to interrupt at the reading of the phase-one verdict demonstrates a failure to understand the nature of the jury's role in determining his fate at phase two of the
(VII Second Trial Tr. at 256.) The state's reliance on the court's failure to notice changes in McGregor's behavior is therefore misplaced. Review of the record shows that although the court had an opportunity to see McGregor, the court very rarely interacted with McGregor verbally. Absent such verbal interaction, we do not find the court's statements that McGregor was not acting any differently from one day to the next probative of McGregor's ability to aid his counsel in his own defense.
Our conclusion that McGregor's procedural due process rights were violated does not end the analysis. We next consider whether a retrospective competency hearing can be held. Our analysis is guided by Supreme Court precedent, Circuit precedent, and the considered decisions of the other Circuit Courts of Appeal. See, e.g., Drope, 420 U.S. at 183, 95 S.Ct. 896; Pate, 383 U.S. at 386-87, 86 S.Ct. 836; Dusky, 362 U.S. at 403, 80 S.Ct. 788; Clayton, 199 F.3d at 1168-70; Reynolds v. Norris, 86 F.3d 796, 802-03 (8th Cir.1996).
Retrospective competency hearings are generally "disfavored" but are "permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant." Clayton, 199 F.3d at 1169 (internal quotation omitted); see also Pate, 383 U.S. at 387, 86 S.Ct. 836 (emphasizing "the difficulty of retrospectively determining an accused's competence to stand trial"). In the context of deciding whether a state court's retrospective determination of a petitioner's competency violated that petitioner's due process rights, we announced factors to be considered in assessing whether a meaningful retrospective determination can be made:
Clayton, 199 F.3d at 1169.
The facts pertinent to our assessment of whether a meaningful retrospective competency determination can be made in McGregor's case are discussed throughout this opinion; thus, we revisit them only briefly now. We are influenced greatly by the lack of contemporaneous medical evidence in the record regarding McGregor's competency at the time of trial. See, e.g., Dusky, 362 U.S. at 403, 80 S.Ct. 788 (concluding no retrospective competency determination could be held "[i]n view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony"); cf. Reynolds v. Norris, 86 F.3d at 803 (holding petitioner's procedural due process rights were violated by the trial court's failure to conduct an additional competency hearing but concluding a sufficient basis existed for the retrospective determination of petitioner's competency because of the "unusual amount of contemporaneous evidence specifically relating to [petitioner's] competency at the time of trial"). As discussed above, only one psychiatrist testified for the state at McGregor's competency hearing. That doctor's testimony was not based on his own experiences with McGregor; rather, it was based solely on then five-year-old notes—now seventeen-year-old notes—of another doctor taken before McGregor's first trial. The psychologist who appeared at McGregor's competency proceeding also presented severely limited testimony. He refused to opine as to McGregor's competency on the day of the proceeding and limited his assessment to McGregor's competency during a forty-five minute interview that occurred three months prior to the competency proceeding, which itself occurred about seven months before McGregor's second trial. This disturbing lack of contemporaneous medical evidence regarding McGregor's competency at the competency proceeding must be viewed in light of the serious questions raised at trial regarding McGregor's proper medication and the corresponding lack of record evidence available to help answer those questions. Finally, although we emphasize that time is not an insurmountable barrier to a retrospective competency determination, the difficulties arising from the lack of contemporaneous medical evidence are amplified by the further difficulties that necessarily arise from the significant passage of time. A retrospective competency determination would have to place great reliance on the testimony of currently available lay witnesses concerning their recollections of any observations of McGregor more than eleven years ago.
Based on our assessment of the factors set forth in Clayton and the totality of the record before us, we conclude that a meaningful retrospective competency determination can not be made in this case. As such, McGregor's due process rights can not adequately be protected by remanding to the state court for such a determination. We make this determination in the first instance, as did the Supreme Court in Drope, 420 U.S. at 183, 95 S.Ct. 896, Pate, 383 U.S. at 387, 86 S.Ct. 836, and Dusky, 362 U.S. at 403, 80 S.Ct. 788. Although we considered remanding to the federal district court to hold a hearing on the issue of whether a meaningful retrospective competency determination can be made, we reject that approach because of the particular balance of circumstances in this case.
BRORBY, Circuit Judge, dissenting.
I respectfully dissent.
The legal analysis of Mr. McGregor's procedural competency claim as set forth in the majority en banc opinion is essentially the same as that applied by the majority and dissenting panel members in McGregor v. Gibson, 219 F.3d 1245 (10th Cir.2000). At each stage we asked whether the evidence and circumstances known to the trial court should have raised a bona fide doubt in the mind of a reasonable jurist about Mr. McGregor's ability either to consult with his attorneys with a reasonable degree of rational understanding or to possess a rational and factual understanding of the judicial proceedings. See majority en banc op. at 954-55; McGregor, 219 F.3d at 1250-52; id. at 1257-58 (Murphy, J. dissenting). To answer this question we looked at relevant factors such as Mr. McGregor's demeanor at trial, evidence of irrational behavior, prior medical opinions regarding competency, evidence of mental illness, defense counsel's representations and the trial judge's observations. Majority op. at 954; McGregor, 219 F.3d at 1251-52; id. at 1257-58 (Murphy, J. dissenting). The issue here, then, is not what law to apply. Rather, it is how established law applies to the facts of record in this case.
Two of the three panel members, exercising their best judgment, determined Mr. McGregor failed to show a bona fide doubt existed concerning his competency at the time of his second trial. McGregor, 219 F.3d at 1252. Now, after exercising their best judgment, six members — a majority — of the en banc court have determined a reasonable jurist would have harbored such a doubt. Majority op. at 962. This numbers game reveals an unfortunate, inherent shortcoming in our capital case habeas corpus jurisprudence. Some death row inmates whose cases present "close calls" garner enough appellate votes to secure federal habeas relief. Some do not.
After carefully reviewing the record, I continue to believe Mr. McGregor has failed to carry his burden of establishing a bona fide doubt in the mind of a reasonable jurist that he was competent to stand trial. The totality of the circumstances and evidence strongly suggest to this reasonable jurist Mr. McGregor deftly toyed with defense counsel and the trial court. Under these circumstances, I believe the observations and reasoned judgment of the trial judge carry significant weight. I would affirm the district court's order denying habeas relief on all grounds.
TACHA, Chief Judge, and BALDOCK, Senior Circuit Judge, joining in the dissent.
(Comp.Trial Tr. at 104-07.)