(dissenting) :
I assume as does the court that the evidence at trial was sufficient to sustain the conviction. This is often true notwithstanding a conviction cannot stand because obtained in violation of due process of law, the right to the effective assistance of counsel, or for some other error. I think this is such a conviction. Moreover, some situations arise which place a case beyond the reach of the law we administer. I think this is also such a situation. It is unique in rarity. In the automobile crash which followed the robbery one of the two occupants of the car was killed. Appellant suffered the grave injuries described in the court’s opinion. A consequence is the complete and permanent deprivation of all knowledge of anything for a period extending from two hours preceding the robbery until three weeks after it. This is conceded by the United States. Of course he would not be relieved of responsibility because of these injuries if he were in a position to be tried consistently with our system of law. In my opinion he is not in such a position.
Appellant by reason of physical brain injury has not simply been completely and permanently deprived of all knowledge of the robbery itself but of all knowledge of anything covering the entire period surrounding it. To try him for crimes which occurred during this period is thus to try him for something about which he is mentally absent altogether, and this for a cause not attributable to his voluntary conduct. The effect is very much as though he were tried in absentia notwithstanding his physical presence at the time of trial.
We have held that memory is an essential element of competency to stand trial. Hansford v. United States, 124 U.S.App.D.C. 387, 389, 365 F.2d 920, 922. We there said, “the defendant’s memory and intellectual abilities which are crucial to the construction and presentation of his defense, must not be substantially impaired by mental disorder.” Likewise, in United States v. Chisholm, 149 F. 284 (S.D.Ala.1906), it was held that the test of competency to stand trial is whether the defendant,
is possessed of sufficient mental power, and has such understanding of his situation, such coherency of ideas, control of his mental faculties, and the requisite power of memory, as will enable him to testify in his own behalf * * * and otherwise to properly and intelligently aid his counsel in making a rational defense.
In a realistic sense appellant was incompetent at trial because of complete lack of factual understanding of the period involved in the charges on trial. Cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. And the conviction of one who is legally incompetent violates due process of law. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815.
While appellant’s amnesia is due to physical brain injury rather than a different kind of mental disorder, this should not differentiate his case, in passing upon his ability to be fairly tried, from the case of one whose lack of memory is due to mental illness. The question of competency to stand trial should not turn upon “the fortuitous presence of a *467narrowly defined mental disorder.”1 Note, 71 Yale L.J. 109, 116.
The above bases for my view on the due process issue bring the trial also into conflict with appellant’s right to the effective assistance of counsel guaranteed by the Sixth Amendment. Appellant presumably is competent to observe and in one sense to understand at trial what is then taking place, but he is unable to understand its factual basis since he completely lacks all knowledge bearing on the testimony concerning his whereabouts, condition, and actions for the period of several hours preceding, during, and for weeks after the events being described at trial. Thus, he cannot provide his counsel with information which might assist counsel in defending him.
In the Chisholm, case, supra,, the court pointed out that a defendant must be able to furnish his counsel with “all the material facts bearing upon the criminal act charged against him and material to repel the criminating evidence * * 149 F. at 287. Appellant is helpless to do this. He is unable to provide any facts and events of his life during the period when the crimes with which he is charged were allegedly committed. The Chisholm court, referring to “the language of the old books”, recognized as a reason why an incompetent person is not forced to stand trial, that “ ‘there may be circumstances lying in his private knowledge which would prove him innocent or his legal irresponsibility, of which he can have no advantage, because they are not known to persons who undertake his defense.’ ”
The remand proceedings required by the court cannot solve the problem presented by this case. Appellant will no more be able to assist his counsel, and his counsel will no more be able effectively to assist him, at the remand hearing than at the trial itself. The terms of the remand in substance require a hearing on the issue of prejudice. To try separately this issue would leave us where we are now, with the added difficulty that at the remand hearing it appears appellant would be required to testify whether or not he wished to do so, raising another Fifth Amendment problem. If the case is to turn on the issue of prejudice we should determine now that prejudice is inherent in the situation. Denial of the effective assistance of counsel, all else aside, establishes prejudice. Chapman v. State of California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705.2
Determination of guilt is not the test of the validity of a criminal conviction under our system of law. Though such a determination is essential, it must be reached at a trial which conforms with the requirements of the Bill of Rights. Ascertainment of guilt even to a scientific or mathematical certainty does not alone suffice. The plan of the majority to have a hearing at which the Government must prove its case beyond “all reasonable hypotheses of innocence” is no more than a different standard by which to judge the issue of guilt which has already been determined at trial. It does not cure the lack of the constitutional guarantees of due process of law and the right to the effective assistance of counsel.
The rare situation before us is unlike the “drunk” and “delayed arrest” narcotics cases reférred to by my brethren. A separate body of law has developed on the effect of drunkenness on responsibility for crime. For example, where specific intent is an ingredient of the offense, drunkenness is material, and so too where premeditation is an ingredient. The accused is triable for crime though the degree of his responsibility might be affected. He can assist counsel and *468counsel can assist him. I know of no case in which it has been held that drunkenness has erased all memory of the, crime imputed to the person on trial, a conceded phenomenon in our case.
The present case is distinguishable in another respect from those involving drunkenness: “Amnesia cannot truly be voluntary unless it results from conduct voluntarily undertaken with the intent of destroying a memory or at least with the knowledge that amnesia will probably result.” Note, 71 Yale L.J. 109, 125, referred to by my brethren. It is not contended that appellant intended to destroy his memory or had any reason to believe the culmination of his conduct would be the complete and permanent loss of his ability to recall the events of a three-week period. A reasonably foreseeable result of voluntary drinking is the lessening of ability to recall events.
In the delayed arrest narcotics cases it is assumed that remembrance might be impaired due to the protracted delay of the Government in making its charge. This is deemed to place the accused at a disadvantage which would make his trial unfair unless the disadvantage — prejudice — is compensated by the Government. This is thought to be done so as to make the trial a fair one by imposing a heavier burden of proof upon the prosecution. Our case is different. The faculty of memory for the pertinent period is destroyed. This creates a different kind of disadvantage from an assumed difficulty in remembering. It disables the accused in a manner which takes from him a quality essential to a total personality. It removes him, as a total personality, from not only the scene of the crimes but everywhere for the period preceding, during, and for three weeks after the crimes.3 The terms of the remand cannot supply the deficiency which brings his trial into conflict with due process of law, for the remand is subject to the same difficulty; and this is true, also, with respect to appellant’s inability to assist counsel or to have the effective assistance of counsel.
I respectfully dissent.
. This is a separate problem from a defense based on insanity at the time of the commission of a charged offense.
. To rely upon the harmless error rule so as to make such a case as this, involving substantial rights, turn upon the result of a hearing on the issue of prejudice, overextends Chapman. Moreover, the burden on the prosecution imposed by Chapman, 386 U.S. at 24, 87 S.Ct. 824, cannot be met in such a case as this.
. The accused in the delayed arrest cases might not recall where he was or what he was doing on a specific day, but like any other person he is capable of knowing whether or not he ever was at a certain place or performed certain acts attributed to him. That he cannot recall at trial where he was at a particular time does not mean that he cannot with certainly remember, if it be true, that he was never, certainly not at a particular time, at a particular location, and that he never sold a package of drugs. Appellant cannot state he was not at one place or another at any time because for all he knows he might have been there during the three-week period. He cannot help his counsel about these matters, and counsel cannot effectively help him. The burden placed upon the Government by the remand in our case does not reach the kind of problem inherent in the situation. The remand is a conscientious effort to mold the law to a pattern which I think it cannot sustain.