(concurring).
In concurring with the result reached by the majority, I want to emphasize that cases such as this must each turn on the particular facts involved, and, as noted by Judge Bright, “no standard can be arbitrarily articulated covering all circumstances under which an accused demonstrates his entitlement under the [Criminal Justice] Act to services of experts to present an adequate defense.”
The majority is of the opinion, based on the record in this case, that a new trial is necessary to assure a fair trial for defendant. It is indeed a close question as to whether the facts supporting defendant’s request for appointment of a medical expert for an additional examination are sufficiently compelling to justify this court in substituting its judgment for that of the trial court which is authorized in the first instance to make a determination. The district court possesses broad discretion in this matter as it should have, and I am fearful that the decision of the majority may be used as a basis to unduly limit the district court’s broad discretion. It is only because of the strong feeling of the majority heretofore mentioned and a combination of a number of factors which are present that I have concluded that defendant should have been permitted another psychiatric examination.
In the first place, commitment to the Medical Center at Springfield was for the specific purpose of determining whether “the defendant is presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him and to assist in his own defense.” Consequently, when the three members of the Neuropsychiat-ric Staff examined defendant and unanimously found that he was competent, this finding pertained to his competency to stand trial and not to his competency at the time of the alleged crime. The test to be used in determining whether defendant has sufficient mental capacity to stand trial is whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding of the proceedings against him. Wheeler v. United States, 404 F.2d 252, 254 (8th Cir. 1968); Butler v. United States, 384 F.2d 522, 523 (8th Cir. 1967). A finding of competency to stand trial does not therefore necessarily indicate competency at the time of the commission of the alleged offense.
In view of the fact that defendant had a long history of mental illness, including manic depression, the fact that the Medical Center had not been asked by the court to determine his competency at the time of the commission of the crime, and the further fact that it was his intention to raise the insanity defense at the trial — the success of which depended almost entirely upon the presentation of expert testimony — I am led to the conclusion from the above and other record facts that an additional psychiatric evaluation was a reasonable request and probably necessary in order for defendant to be able to prepare an adequate defense.