(dissenting).
I respectfully dissent. The state trial judge knew that while awaiting trial in the Calloway County Jail petitioner had attempted to commit suicide by hanging himself, had written suicide notes in which he stated it was God’s will that he take his own life, and had exhibited paranoid tendencies by repeatedly expressing fears that other people were out to get him. The trial judge also was aware of petitioner’s 20 year history of hospitalization for mental abnormality, and of his having been confined to a mental institution while awaiting trial. Furthermore, the trial judge was confronted with petitioner’s trial behavior, which has been characterized as staring into space in an apparent unawareness of the proceedings, and heard testimony by petitioner’s fellow inmates and Dr. Kernoke, a psychiatrist. The inmates testified that petitioner had told them to stay away because he did not know what he was doing and that he had stated the “guys across the hall” were trying to hurt him. Dr. Kernoke testified that in his opinion petitioner was not insane but was suffering from a serious mental disorder.1
too loose to serve as a reasonable test of whether a person is properly fit to *641plead or defend himself in a criminal proceeding. For this purpose, whatever may be the technical classification of his mental state, legally or medically, the test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. Commonwealth v. Strickland, 375 S.W.2d 701, 703 (Ky. 1964).
I would hold that these facts were sufficient to afford the trial judge a bona fide doubt concerning petitioner’s competence to stand trial and that the failure sua sponte to conduct an inquiry to determine this issue deprived petitioner of his constitutional right to a fair trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). See Rhay v. White, 385 F.2d 883 (9th Cir. 1967). It is important to remember that the issue under Pate v. Robinson is not whether the trial judge should have concluded, based on the facts before him, that petitioner was incompetent, but only whether the facts should have indicated to the judge that a substantial question existed about petitioner’s competence.2
Moreover, I find the majority’s alternative holding that petitioner received a full and fair hearing on the issue of his competence to stand trial in 1962 unpersuasive. The hearing relied on by the majority was conducted in 1967, approximately four and one-half years after the point in time when petitioner’s competence to stand trial was in question. The only witnesses heard by the court, in addition to petitioner himself, were petitioner’s attorney during the original trial and a psychiatrist who examined petitioner in 1966. The majority opinion apparently recognizes the limited value of the psychiatrist’s post facto examination of petitioner and relies primarily on the attorney’s testimony concerning his recollections of petitioner’s behavior in 1962.
Although the attorney stated that he thought petitioner was competent to stand trial, I question the value of his testimony. At the time of the hearing on petitioner’s post conviction motion, the attorney was confronted with the problem of explaining petitioner’s bizarre behavior during the trial. He could have testified that petitioner’s attitude at trial was consistent with his general behavior. Such a statement, however, may have suggested his own ineffective assistance as counsel, since it would have raised the question, why, in light of petitioner’s behavior, defense counsel did not request a competency hearing. See Owsley v. Peyton, 368 F.2d 1002 (4th Cir. 1966); Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966). On the other hand, the attorney could have explained petitioner’s behavior by stating that it was a contrived attempt to convince the jury of the validity of petitioner’s insanity defense. The attorney gave the latter explanation and even admitted that petitioner was acting pursuant to his instructions. This testimony, however, raises a serious ethical question and, in turn, reflects on the attorney’s credibility as a witness.
The only other evidence before the court in 1966 was the transcript of the 1962 trial. Although this transcript contained the testimony of the psychiatrist who examined petitioner prior to trial, I consider it an insufficient basis for upholding a retrospective determina*642tion of petitioner’s competence to stand trial in 1962.3
The Supreme Court has “emphasized the difficulty of retrospectively determining an accused’s competence to stand trial,” and has indicated its lack of confidence in the efficacy of a hearing conducted for this purpose. Pate v. Robinson, supra, 383 U.S. at 387, 86 S.Ct. at 836. See Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Although these pronouncements may not have established a per se rule which forecloses completely the possibility of a hearing to retrospectively determine competence, Lee v. Alabama, 406 F.2d 466, 471 (5th Cir. 1969); United States v. Silva, 418 F.2d 328 (2d Cir. 1969), I do not consider the hearing conducted in this case adequate to justify disregarding the Court’s clear preference for a current determination of competence and a new trial if the petitioner is found competent. Pate v. Robinson, supra; Dusky v. United States, supra.
Accordingly, I would reverse the decision of the District Court and direct it to order petitioner’s release after affording the state a reasonable time to initiate a new trial.
. It is significant that the Kentucky Court of Appeals has stated that the term “insane” is:
. At the time of petitioner’s trial, section 156 of the Kentucky Code of Criminal Practice provided:
If the court shall be of opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until a jury be impaneled to inquire whether the defendant is of unsound mind * * *.
The Kentucky Court of Appeals has distinguished between insanity and competence to stand trial, see n. 1, supra, and has held that a jury need not be impaneled in order to determine the latter issue. Commonwealth v. Strickland, supra. Moreover, the statute is indicative of Kentucky’s concern that its trial judges be vigilant about a defendant’s competence to stand trial.
. It is important to observe that the psychiatrist’s testimony was directed primarily to the question of petitioner’s sanity, and not to the question of his competence to stand trial. See n. 1, supra.