concur: On July 12, 1956, this court affirmed determinations made by the District Court in 1955, under 18 U.S.C. § 4245,1 that ap*638pellant had been mentally competent during three separate trials and convictions in 1953. This, so far as we have been able to find, is the first appellate consideration of a proceeding under that statute. Appellant’s timely petition for rehearing in banc was denied by this court on March 28, 1957, upon the vote of five judges to deny and four to grant. Each judge reserved the right to file a statement of his views. We state ours because we think the court’s action defeats the purpose of a statute vital to the fair administration of criminal justice. The opinion of the court is silent on serious questions relating to the procedural requirements of § 4245. Nor do we think those questions are met in the statement filed today by our brethren who voted against rehearing.
Section 4245 was designed to cover the case “where preexisting mental incompetency manifests itself only after commitment under sentence.”2 It applies, in terms, only where “the issue of mental competency was not raised and determined before or during * * * trial.”3 It provides that whenever the Director of the Bureau of Prisons certifies that a prison inmate has been examined “by the board of examiners referred to in * * * section 4241, and that there is probable cause to believe that such person was mentally incompetent at the time of his trial * * * the Attorney General shall transmit the report of the board of examiners and the certificate of the Director * * * to the clerk of the district court wherein the conviction was had.” The statute directs the court to hold a hearing governed by the provisions of § 4244 and makes the Director’s certificate “prima facie evidence of the facts and conclusions certified therein.” If the court finds “that the accused was mentally incompetent at the time of his trial” the statute directs the court to “vacate the judgment of conviction and grant a new trial.”
Under § 4241, the board of examiners examines only prisoners “alleged to be insane.” The board’s opinion as to past mental condition is thus formulated only in connection with its determination of the prisoner’s present condition. As construed by the Director of Prisons, § 4245 applies only to prisoners who are in fact found presently insane. According to his statement, relied upon by both the House and Senate Reports on the legislation, § 4245 applies to “any person who, during service of sentence, is certified by prison authorities to be of unsound mind and that such condition probably existed * * * at the time of * * * trial.”4 Thus a prisoner comes to his § 4245 hearing with an administrative finding that he is presently, and probably was when tried, of unsound mind.
Appellant was convicted of three offenses 5 before three different judges, in April, June and October 1953. Before the first trial the United States made and withdrew a motion for a mental examination. No such motions were made by either side before or during the other trials. Hence the issue of mental competency was not “determined before or during” any of the trials and the requirements of § 4245 are fully applicable.
Appellant’s convictions brought separate and consecutive sentences, aggregating 13 to 39 years, which he commenced serving in May 1953, after the first conviction. On November 4, 1954, the At*639torney General transmitted to the District Court the certificate of the Director of the Bureau of Prisons that there was probable cause to believe that appellant was mentally incompetent at the time of his trial. The board’s report was expressly incorporated in the Director’s certificate. The certificate, therefore, was “prima facie evidence of the facts and conclusions” in the report. Among those facts and conclusions are the following: appellant was received at the Federal Penitentiary at Atlanta on January 20, 1954, and was placed in the neuropsychiatric ward of the prison hospital two weeks later. On March 11, 1954, the prison’s psychiatric board diagnosed his condition as paranoid schizophrenia, certified him as psychotic and recommended his transfer to the Medical Center at Springfield. The board stated: “It was the unanimous opinion of the members of the psychiatric board that he has been psychotic for several years.” On April 20, 1954, appellant was transferred to Springfield, where the diagnosis made at Atlanta was confirmed. Among the symptoms observed were “delusions of persecution, auditory and visual hallucinations, difficulty in organizing thoughts, inability at times to distinguish between fantasy and reality, impaired insight and judgment.” The Springfield board expressed the opinion that “this patient has been chronically mentally ill for almost eight years.”
Whatever ambiguity there may be in § 4245, one thing is clear: the certificate makes a prima facie case that the prisoner was mentally incompetent when he was tried. The statute implements the sound policy that no person should be punished who has not been fairly tried and convicted. That is the Government’s policy, not Fooks’. Even if Fooks preferred to serve his sentences rather than be declared incompetent,6 he could not prevent the Director of the Bureau of Prisons from discharging his statutory duty to institute these proceedings. They were instituted by the transmission of the Director’s certificate to the District Court. The Government, not Fooks, instituted them. There was thus no case for Fooks to make and no burden of proof for him to bear. If the prima facie effect of the certificate was to be overcome, it would have had to be upon a showing made by those seeking to overcome it. In both hearings below, however, this basic scheme of the statute was overlooked.
Ignoring the fact that the Attorney General institutes these statutory proceedings, the Assistant United States Attorney assumed that Fooks was the moving party. He declared at the hearing before Judge Letts: “I take the position that the movant has the burden of proof and this proceeding is not a proceeding which the Government moved; that is, certainly not my office.” Judge Letts ruled that the burden of proof was on the Government. Judge Keech held that the burden of proof was on Fooks and that it was a “severe burden.” United States v. Fooks, D.C.D.C.1955, 132 F.Supp. 533, 535. What was held in this regard by Judge Schweinhaut, who sat with Judge Keech, is not disclosed by the record. All three judges imposed upon Fooks the burden of going forward.7 Judge Keech, indeed, considered the case as one brought by Fooks under 28 U.S. C. § 2255. He said:
“Therefore, treating the present proceeding as a motion to vacate the judgment and sentence on the ground of mental incompetency of the defendant at the time of trial, *640the court will deny the motion.” Id., at pages 536-537.
At both hearings, the challenge to the prima facie effect of the Department of Justice certificate came from the office of the United States Attorney. Had the intent of § 4245 been carried out, that office would have been required, if it wished to overcome the prima facie case made by the certificate, to bring forward evidence sufficient to overcome it. The prosecutor might have cs.lled the prison doctors whose reports formed the basis of the certificate. If the prosecutor had called the doctors, they would have been his witnesses, and if normal rules were applied, he would have been forbidden to treat them as hostile witnesses and Fooks’ counsel would have been permitted to ask them leading questions. But the district judges deprived the certificate of its prima facie effect,8 and made it necessary for Fooks to bring forward witnesses. Although the witnesses and the prosecutor were fellow-employees of the Department of Justice, the prosecutor cross-examined them as if they had been hostile witnesses, demanding unqualified answers, and accusing them of not listening to his questions and of giving unresponsive answers. Fooks’ counsel was permitted to elicit from them only the facts they could claim to know at first hand by their own observation. The background material which went into the reports incorporated in the certificate, consisting of the findings and observations of other psychiatrists and nurses on the prison staff, was excluded by literal application of narrow rules of evidence. At the hearing before Judge Letts, Fooks’ counsel was not even allowed to use leading questions in examining the witnesses.
Another consequence of denying the certificate its prima facie effect was that Fooks, who was prima facie incompetent 9 by virtue of § 4245 and the administrative finding of the Department of Justice, was allowed by the judges and his court-appointed counsel to take the stand and be subjected to cross-examination by the prosecutor. Our brethren who voted against rehearing in banc think it not improper for the testimony of the prima facie incompetent to be taken in a § 4245 proceeding. They say the accused in a § 4244 proceeding is also prima facie incompetent10 and that the latter statute comprehends that he is to testify at his hearing. Although our brethren point to a statement in the *641House Report on § 4244 referring to the accused’s “statements at such hearing,” we think it cannot be said that either § 4244 or § 4245 contains any language directly or indirectly providing for the testimony of an incompetent. It has never been held that § 4244 authorizes such testimony and no proceeding under that statute has come to our attention in which such testimony was admitted. We think the court should reconsider whether § 4245 permits it.
Two of the three decisions below11 were, in effect, that even if the burden was on the Government to prove beyond a reasonable doubt that Fooks was mentally competent when he was tried, there was ample evidence to sustain that burden. This court’s decision agrees with that view without deciding what measure of proof is required, from whom, and through what procedure. Whether the evidence was sufficient, by any reasonably acceptable standard of proof, to support a finding of mental competence, is doubtful. But that doubt would not, in our view, call for a rehearing in banc. We voted for rehearing in banc because this court’s decision rests on the assumptions that Congress intended (1) that the § 4245 hearing be of the usual judicial type, conducted like any adversary proceeding; (2) that, despite the prima facie effect of the certificate, the prisoner be treated as the movant and be required to prove that he was incompetent when tried; (3) that a representative of the Department of Justice may treat as hostile witnesses other representatives of that Department; and (4) that the testimony of a prima facie incompetent be taken for the purpose of determining his past competency.
A certification by the Director of the Bureau of Prisons that a prisoner was probably mentally incompetent at the time of his trial is, of course, not conclusive. It does not follow that the hearing to be held on the question should be of the ordinary adversary type. The requirement that the hearing be “in accordance with” § 4244 indicates what Congress intended. So far as we are aware, in hearings under § 4244 after a psychiatrist appointed by the court has reported that the accused is incompetent, the United States Attorney makes no attempt to give the proceedings an adversary character. The same is true of proceedings de lunático inquirendo held under D.C.Code 1951, § 21-310. The incompetent in those proceedings “becomes a ward of the court, under the familiar doctrine of paerns patriae.” Overholser v. Treibly, 1945, 79 U.S.App.D.C. 389, 392, 147 F.2d 705, 708. Similar considerations dictate that hearings under § 4245 be held under some procedure different from that now countenanced by the court. We think exposition of the required procedure should await a rehearing addressed to that question.
FAHY, Circuit Judge:I voted for a rehearing en banc, and am fortified in having done so by the analysis of the problem contained in Judge Bazelon’s statement now filed.
. “Whenever the Director of the Bureau of Prisons shall certify that a person convicted of an offense against the United States has been examined by the board of examiners referred to in title 18, United States Code, section 4241, and that there is probable cause to believe that such person was mentally incompetent at the time of Ms trial, provided the issue of mental competency was not raised and determined before or during said trial, the Attorney General shall transmit the report of the board of examiners and the certificate of the Director of the Bureau of Prisons to the clerk of the district court wherein the conviction was had. Whereupon the court shall hold a hearing to determine the mental competency of the accused in accordance with the provisions of section 4244 above, and with all the powers therein granted. In such hearing the certificate of the Director of the Bureau of Prisons shall be prima facie evidence of the facts and conclusions certified therein. If the court shall find that the accused was men*638tally incompetent at the time of his trial, the court shall vacate the judgment of conviction and grant a new trial.”
. House and Senate Reports on. the Legislation, 2 U.S.Code Oong.Service 1949, p. 1928.
. Where that issue is raised before oi during the trial, it is disposed of under § 4244.
. 2 U.S.Code Oong.Service 1949, pp. 1928, 1929, emphasis supplied.
. Two of the offenses were assaults with intent to commit rape and the other was assault with a dangerous weapon. All three were allegedly committed within a thirty-day period.
. The record shows that during his trial Fooks threatened to kill his counsel if he raised the question of insanity.
. At the earlier of the two hearings, Fooks’ court-appointed counsel requested a ruling on order of proof and accepted without objection the ruling that he proceed as the movant. At the later hearing, counsel, with the court’s approval, undertook to proceed as the movant. Neither counsel’s failure to protest against the movant’s role at the first hearing, nor his apparent acquiscence in it at the second, should influence our construction of the basic elements of the statute.
. Note the following colloquy between the prosecutor and one of tlie judges e.t the earlier of the two hearings.
“Mr. TrOxell: * * * I feel that this provision [§ 4245] provides for the filing of the certificate which is no more than an ordinary pleading in any case.
“The pleadings in a case are no-: evidence at the time of trial. This certificate merely serves the purpose of creating a forum.
“Judge Schweinhaut: Which is what we are.
“Mr. Troxell: That is right. It creates a forum to make a determiration regarding the issues raised by the certificate and the certificate in and of itself is not evidence. It merely sets the machinery in operation, just as an indictment sets the machinery of a prosecution in—and certainly the indictment is not evidenee-
“Judge Schweinhaut: I do not have any doubt about that.”
It was not until the very end of that hearing that the two judges, after five days of resistance and after all the other evidence was in, even admitted the Springfield report into evidence.
. On the last day of the hearing before Judge Letts, Fooks became ill and “disturbed” and the balance of the proceedings, up to the court’s ruling, had to be conducted in his absence. His counsel waived the necessity of his presence during the making of a stipulation as to certain evidence and during the final arguments.
. We think there is a difference between an accused who is reported by a psychiatrist to be incompetent after an examination as provided by § 4244 and a prisoner certified by the Director of the Bureau of Prisons under § 4245. Section 4244 provides that the psychiatrist’s report “may be submitted” in evidence. It does not provide that he is prima facie incompetent if the report says he is incompetent. The prisoner certified under § 4245 is prima facie incompetent.
. The exact basis of Judge Schweinhaut’s decision is not clear from the record.