(dissenting).
Appellant is an indigent and ignorant layman. He was without counsel when he filed this motion under § 2255. He will presumably be without counsel when and if he wishes to file any new motions, which this court now requires.
*731I agree with my brethren that, based upon the various allegations of the present motion, the District Court correctly denied it. But thereafter the District Court, under its Rule 92(a), appointed counsel to assist appellant in pursuing his application to proceed in forma pau-peris; counsel referred to the record of the case which showed that three months .after the crime Government psychiatrists had found appellant to be suffering from schizophrenia and incompetent to stand trial.1 Appointed counsel charged that trial counsel’s failure in those circumstances to interpose a defense of insanity at the trial constituted ineffective assistance of counsel.
The record shows that appellant’s -crime consisted of sexual molestation of an eleven-month-old baby, causing her to bleed from the vagina. It shows further that, three months after the crime, proceedings were instituted to determine appellant’s mental condition; that the court ordered mental examinations as a result of which it was reported that appellant was psychotic, suffering from schizophrenia; that the court then ordered a competency hearing, as a result of which, on November 19, 1954, appellant was adjudicated incompetent to stand trial and was placed in the United States Public Health Hospital at Lexington, Kentucky; and that, five months later, the hospital authorities certified and, after another hearing, the court found that appellant was then competent to stand trial.2
We need not try to decide whether, on the evidence that could have been produced, appellant would have been acquitted by reason of insanity. It seems obvious, however, that a man who vents his sexual lust upon an eleven-month-old baby, three months later is found by Government psychiatrists to be suffering from schizophrenia, and is then sent to a hospital because he is mentally incompetent to defend himself, has a substantial insanity defense when he is ultimately brought to trial. What reason, if any, his lawyer could have had for not raising that defense is revealed neither by the record before us nor by the files of the District Court available to us. Therefore, whether failure to interpose the defense constituted ineffective assistance of counsel so as to vitiate the conviction cannot be determined without a hearing.
There are at least two compelling reasons for ordering that inquiry now: (1) It is unrealistic to believe either that appellant could have been aware of the applicable legal authorities when he filed the present motion without the assistance of counsel or that, now being informed of some of these authorities by the majority’s opinion, he will be able to understand and apply them in preparing papers for a new proceeding in which he will probably again be without the assistance of counsel. (2) The public is especially concerned in the defense of insanity. For, as my brothers would no doubt agree, hospitalization and treatment which follow acquittal by reason of insanity, rather than imprisonment upon conviction, offer greater promise for rehabilitating compulsive sex offenders and therefore greater protection for the community.
When the facts concerning appellant’s history of insanity were brought to the *732District Court’s attention by counsel’s Rule 92(a) memorandum, the District Court could have reconsidered, sua sponte, its disposition of appellant’s § 2255 motion. I think sound judicial administration, in promoting the protection of the community as well as the best interests of the individual, required such reconsideration. I would therefore remand the case to the District Court for a hearing to determine whether it was ineffective assistance of counsel which deprived appellant of the insanity defense. If it is determined that the insanity defense was not raised for some other reason, then, I think, the question arises whether the failure to invoke that defense, in connection with behavior which so seriously endangers the community, defeats the purpose of the criminal law.
. Whatever may be said of counsel’s duty to spell out to the trial judge those details in the court’s file upon which counsel relies, rather than expect the judge to ferret them out, the facts here called to the attention of the judge required no spelling out. They literally leap to the eye. It is hardly too burdensome to expect the trial judge to be aware of material in his file which shows that shortly after the crime appellant had been found to be suffering from schizophrenia and that the trial had been postponed for several months during which time appellant had received treatment in a mental hosxfital.
. Neither the hospital authorities nor the court found that appellant had recovered from his mental illness and would not be dangerous within the foreseeable future. Cf., e. g., Return to order to show cause in habeas corpus proceeding In re Paul A. Pendergraph, Habeas Corpus No. 80-58 (D.D.C.1958).