dissenting:
As the Iowa Court of Appeals determined, when Denise Rhode was tried in the Iowa state court, reasonable grounds existed to examine her competency to stand trial. Under Iowa Code § 812.3 (1994), the court was required to suspend the proceedings immediately and to hold a competency hearing. The court ignored this mandate. Instead, Rhode was given the hearing two and one-half years after her conviction. In my judgment, it was not possible for Rhode to receive a meaningful hearing at that time. Thus, I dissent.
A post-conviction competency hearing is a proper remedy for a wrongful denial of a pretrial hearing only if a “meaningful hearing” is possible. Harkins v. Wyrick, 552 F.2d 1308, 1311 (8th Cir.1977); Griffin v. Lockhart, 935 F.2d 926, 931 (8th Cir.1991) (granting habeas corpus because it “seemed impossible to now conduct a meaningful nunc pro tunc hearing” over three years after defendant’s trial).
In this case, the hearing was not held until two and one-half years after Rhode’s conviction. The court had to determine both whether Rhode was competent at the time of the competency hearing and at the time of her trial. The expert testimony available to the state was inadequate to meaningfully address either of these issues. Three of the four expert witnesses for the state had only limited contact with Rhode, all of which occurred during her postconviction incarceration. A review of their testimony clearly demonstrates that none of these expert witnesses had examined her prior to her conviction and they never examined her to determine her competency to stand trial.
Carol Rowe, a correctional counselor at the Iowa Correctional Institution for Women in Mitchellville, Iowa, testified that she had seen Rhode, along with over a hundred other inmates, for a routine, administrative “review of her stay”; beyond that, most of her knowledge of Rhode’s mental state came from incident reports prepared by other prison *1121employees. Hrg. Tr. at 3332 Rowe did not express an opinion about Rhode’s competency at the time of trial; she merely stated that she believed Rhode understood what was “going on” while incarcerated. Hrg. Tr. at 338.
Leonard Welsh, a staff psychologist with the Iowa Department of Corrections, performed a psychological evaluation of Rhode at the outset of her post-conviction incarceration as part of her prison entrance evaluation. He did not examine her to determine her trial competency, and he was not even aware of her history of mental illness. Hrg. Tr. at 297, 304-05. When asked about Rhode’s competency to stand trial, Welsh expressed serious doubt about his ability to form an opinion: “Since you are not there at the time, all you can do is make inferences; and to do anything other than that is to go beyond what you can say.” Hrg. Tr. at 302. He did not explicitly express his opinion as to Rhode’s competency at the time of the 1992 hearing; rather, based primarily on written records, he stated that in his opinion, Rhode did not suffer any significant form of mental illness. Hrg. Tr. at 302.
Peter Brainard, a psychologist at the Mitchellville prison, had twelve to fifteen psychotherapy sessions with Rhode during her incarceration and performed a mental status evaluation of her two years after her conviction. Hrg. Tr. at 323-24. When asked whether Rhode was currently suffering from a mental illness, Brainard answered that six months prior to the hearing she was not, but that he had “no basis for a judgment” as to her present mental condition. Hrg. Tr. at 325. Brainard never explicitly testified that Rhode was competent at the time of her trial, but only that he did not believe she had ever suffered from a mental illness during the two years he had contact with her at the prison. Brainard’s testimony highlights, not only the inadequacy of his opinion as to Rhode’s competency at the time of trial, but also the extreme difficulty in making these post-trial determinations generally.
Finally, Dr. Michael Taylor, the only state witness who testified that Rhode was competent both at the time of the hearing and when she stood trial, based his opinions solely on written records and a personal consultation with her just prior to the competency hearing. It is precisely this type of expert testimony, based on printed records alone, that the Supreme Court intended to discourage in Pate v. Robinson, 383 U.S. 375, 386-87, 86 S.Ct. 836, 842-43, 15 L.Ed.2d 815 (1966).
The Supreme Court of Iowa has consistently considered reversal of a defendant’s conviction to be the appropriate remedy for violation of section 812.3. See State v. Kempf, 282 N.W.2d 704, 710 (Iowa 1979) (reversing defendant’s conviction); Hickey v. District Court of Kossuth County, 174 N.W.2d 406, 412 (Iowa 1970); see also, State v. Myers, 460 N.W.2d 458, 460 (Iowa 1990) (“If the court of appeals was correct in concluding that matters known to the trial court mandated a hearing under section 812.3, then we believe the failure to hold such a hearing was probably not capable of being cured by an ex post facto determination of competency.”). The instant decision by the Iowa intermediate appellate court is inconsistent with these clear precedents of the Iowa Supreme Court and does not, in my opinion, comport with Iowa Law. See State v. Rhode, 503 N.W.2d 27 (Iowa App.1993).
Because the opinions of the state witnesses were based primarily on limited, purely administrative, post-conviction contact with Rhode, the trial court was not able to conduct a meaningful competency hearing in this case. I believe that we must vacate Rhode’s conviction to remedy the court’s error at trial. The state, of course, may retry her if at the appropriate time and in the appropriate proceeding it is determined she is competent to stand trial.
. All citations to expert testimony refer to the transcript of the post-conviction competency hearing held October 20, 1992.