(dissenting).
I respectfully dissent.
I, too, share the majority’s concern over reversals based on technical error in criminal cases. Surely, this does not mean, however, that one’s zealous search for law and order should allow the denial of opportunity for a fair trial to be relegated as a “bare technicality.”
I have difficulty in distinguishing the present case from this court’s recent decision in United States v. Schultz, No. 19,809, 431 F.2d 907 (8 Cir., July 17, 1970). In Schultz under the facts presented we held that it was error for the district court to deny the defendant’s motion for an independent psychiatric examination under the Criminal Justice Act. 18 U.S.C.A. § 3006A(e)1 This *1071court found that § 3006A(e) laid down “a two-prong test”; first, a showing that the accused is indigent and second, a “need for such services to present an adequate defense.” There is nothing in the record to contradict Maret’s compliance with these requirements. We further observed that: “the courts ought to apply a more lenient standard [under § 3006A(e)] in determining the need for services of experts in preparation for trial than that applied under 17(b) [Fed. R.Crim.P.].” When the factual circumstances are so similar, as they are in the instant case with those in Schultz, I would think our holding in Schultz to be controlling.
The denial of the defendant’s motion for an independent psychiatric examination in Schultz occurred in May 1969. The denials of defendant’s motions in this case occurred in April, June and September of 1969.2 It is significant that the same trial judge presided over both cases and in each the denial was based upon the ground that the government psychiatrists at the Springfield Medical Center had conducted a competency examination. Thus, one may reasonably conclude that the denial here was in conformity with an established practice of the district court, rather than a singular determination of the alleged necessity of the examination and requested services of an expert witness as required under the Act. The court observed that the motion indicated the defendant’s attorney considered the Springfield doctors either “incompetent” or “prejudiced.” With these statements the motion for an independent examination was denied.
The facts in the Schultz case are strikingly parallel. First, Maret’s actions at the post office present a bizarre picture. Maret told federal employees when he first entered the post office that he wanted to be taken to the Provost Marshal and that he wanted the F.B.I. called so he could turn himself in. When a postal official called the F.B.I. agent Maret went to the phone and said, “Hi, you, Pop, how are you doing?” His additional actions, as described in the majority opinion, give one reasonable cause to question the mental competency of the defendant at the time of the offense. At least the government prosecutor felt so at the time.
Shortly after Maret’s arrest, the United States Attorney moved, as in Schultz, pursuant to the provisions of 18 U.S.C.A. § 4244, for a judicial determination of the defendant’s competency to stand trial. The order for the examination recited that the accused “may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense * * This order was entered on the 29th day of July, 1966. On April 16, 1969, after Maret was allowed to withdraw his guilty plea, and prior to his trial, the district court ordered another competency determination: “Pursuant to 18 U.S.C. § 4244, on motion of counsel for the defendant for a psychiatric examination, and it appearing that the defendant may have been mentally incompetent at the time of the offense for which he is charged, may be presently insane, or otherwise so mentally incompetent as to be unable to understand the proceedings against him or to properly assist in his own defense * * (My emphasis). This order reflects that the trial court sufficiently understood that the *1072purpose of the defendant’s motion was to determine whether the defense of insanity could be raised on behalf of the defendant.3 Without the benefit of psychiatric testimony the defendant’s counsel was not in a position to raise the defense.
The majority opinion points out that the April 16, 1969, order for an examination by the government psychiatrists directed a determination not only of Maret’s competency to stand trial but also of his mental competency at the time of the criminal offense. In Schultz a significant factor in finding the denial of an independent examination to be error was that the government examinations at Springfield covered only the status of Schultz’ competency to stand trial under § 4244 and not his competency at the time of the offense. As pointed out by Judge Bright in Schultz, “a substantial difference may exist between the mental state which permits an accused to be tried and that which permits him to be held responsible for a crime.” A review of the June 5, 1969, report from the Springfield Medical Center in the present case reveals that the government psychiatrists, notwithstanding the trial judge’s direction, conducted their examination only for a determination of competency to stand trial. The concluding paragraph of the “Special Progress Report” forwarded to the court reads: “It is the opinion of the Neuropsychiatric Staff that this patient is ready to return to court and that if a competency hearing is held that findings support adjudication of competency.” This was the same limited finding made in the psychiatric report of October 1966. This is the identical conclusion written by the Medical Center in the Schultz case.
Another similarity of Schultz and Maret is reflected in the medical history relating to behaviorial disorders of the two defendants.. Maret’s history shows he was treated by Army psychiatrists who felt he “was an emotionally unstable personality, manifested by impulsivity, immaturity and suicidal gestures.” He was discharged from the Army for being A.W.O.L. and because of his drinking. The diagnostic impression of Maret from the Springfield Medical Center on September 22, 1966, reads: “000-x61 sociopathic personality disturbance, antisocial type, characterized by poor judgment and impulse control, emotional immaturity, and the seeking of personal gratifications on a hedonistic level.”
This same diagnosis was made in 1969 by the Springfield Medical Center staff. However, in the interim commitment at Leavenworth Maret had been transferred to Springfield on February 28, 1968, for neuropsychiatric treatment because of a “behavior problem and aggressiveness toward other inmates.” In 1967 at Marion penitentiary he was placed in segregation “for his protection as he was talking about committing suicide by ‘cutting my throat’.”
There can exist little doubt that absent Maret’s indigency, his counsel would have procured before trial independent psychiatric opinion as to the defendant’s competency at the time of the offense in question. Such an examination would have aided the defense counsel’s cross-examination of government psychiatrists and his defense to prove the defendant’s lack of intent to rob the post office. In my judgment, the need for such services, under the facts presented, is clearly demonstrated and one must conclude that the defendant was denied the right to an in*1073dependent psychiatrist’s services solely because of his financial inability.4 An adversary’s expert witness is not the hall of knowledge for opposing counsel’s preparation and defense. As Judge Bright, himself a former successful trial practitioner, so cogently observes in Schultz: “ * * * the adversary system cannot work successfully unless each party may fairly utilize the tool of expert medical knowledge to assist in the presentation of this issue to the jury.”
I would reverse the judgment of conviction and would order prior to retrial an independent psychiatric examination of the defendant to determine his mental competency at the time of the criminal offense charged.
. 18 U.S.C.A. § 3006A(e) reads:
“Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his case may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant. The court may, in the interests of justice, and upon a finding that timely procurement of necessary services could not await prior authorization, ratify such services after they have been obtained. * * * ”
. Maret’s counsel filed a written motion for an independent examination on April 1, 1969. At the arraignment and hearing to determine competency on June 13, 1969, Maret’s counsel asked that an independent psychiatrist, a Dr. Bergman of St. Louis, review the government’s medical reports. Counsel stated to the court: “I will renew my written motion to this extent. I would like to have a copy of the evidence found by the Medical Center sent to Dr. Bergman so he can evaluate it for my benefit so that I know I am on a sound basis.” The trial judge denied this request because he was not acquainted with Dr. Bergman. The third request for an independent examination was made on the first day of trial, September 2, 1969. This was likewise denied.
. The district court asked defendant’s counsel the purpose of his motion for an independent examination after the Medical Center’s report had been received. Counsel replied: “To determine in my own mind the ability of this man to know both now and in the past what he was doing and the effect of his acts.” Furthermore, the original written motion filed by defendant’s attorney on April 1, 1969, specifically stated: “Counsel for defendant further states that the above tests, examinations, records and reports are necessary for the preparation of the defense of the defendant; and that the defendant does not have funds to pay for such tests, examinations, records and reports.”
. Since I would reverse the judgment because of error under § 3006A(e), I need not discuss the constitutional implications of a denial of psychiatric services where both need and indigency are demonstrated. Cf. Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) ; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) ; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 17 L.Ed.2d 290 (1956). And see Mr. Justice Clark’s admonition in Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 898, 6 L.Ed.2d 39 (1961) : “When an equivalent right is granted by a State, financial hurdles must not be permitted to condition its exercise.”