James J. Filiaggi v. Margaret Bagley, Warden

R. GUY COLE, JR., Circuit Judge,

dissenting.

At the time of Filiaggi’s trial, it had been clearly established federal law for 40 years that a defendant whose competence is reasonably in doubt is constitutionally entitled to a competency hearing, even if he has not requested one. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 376-77, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (defendant had “raise[d] sufficient doubt as to his competence to require the trial court to conduct a hearing on its own motion”). We have interpreted Drope and Pate to require us to ask “[wjhether a reasonable judge, situated as the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to [a defendant’s] competency to stand trial.” Williams v. Bordenkircher, 696 F.2d 464, 466 (6th Cir.1983). The existence of evidence that the defendant is competent, of course, does not foreclose the necessity of a hearing on that very issue. See Pate, 383 U.S. at 385-86, 86 S.Ct. 836; see also Drope, 420 U.S. at 175, 95 S.Ct. 896 (holding refusal to have hearing unconstitutional despite “aspects of report suggesting competence”).1

In this case, Filiaggi was accidentally shocked by a stun belt. As a consequence of his severe emotional reaction, he was analyzed the next day by a court-appointed forensic psychologist, Dr. Thomas Haglund. Although he testified that Filiaggi was competent at the time of the interview, Dr. Haglund noted .that he “was rather hesitant about the trial continuing” *860and “certainly didn’t think [Filiaggi] was able to continue the trial given the state he was in yesterday.”

The psychologist also testified that Filiaggi’s condition was unstable, subject to change “day-to-day,” and, notably, that the need for “further examination” was indicated. See also Drope, 420 U.S. at 181, 95 S.Ct. 896 (“Even when a defendant is competent at the commencement of trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.”). Yet when defense counsel — one of whom was a licensed physician and all of whom were, in the words of the Ohio Supreme Court, “officers of the court, [whose] assertions cannot be dismissed,” State v. Filiaggi, 86 Ohio St.3d 230, 714 N.E.2d 867, 873 (1999)-repeatedly2 asked for further evaluation upon specific, verifiable, and relevant bases,3 the trial court repeatedly denied the requests.

The court’s predominant rationale was that Filiaggi was malingering, evidenced by the court’s observation of Filiaggi and the statements of several guards. This conclusion is surprising, given that the aforementioned psychologist who evaluated Filiaggi, and whose evaluation formed the basis for the court’s initial determination of competence, testified specifically that Filiaggi was not malingering. The psychologist credited Filiaggi’s belief, for instance, that he was being shocked by electricity even after the belt had been removed.

To repeat: the only mental health expert4 to observe and interview Filiaggi specifically rejected the basis for the trial court’s refusal to further evaluate him. But in any event, although a defendant’s observable behavior “might be relevant to the ultimate decision as to his [competence,] it cannot be relied upon to dispense with a hearing on that very issue.” Pate, 383 U.S. at 385-86, 86 S.Ct. 836. Why, then, if this case is so straightforward, did these various state and federal courts rule against Filiaggi? The charitable answer is that, like the majority, they made a mistake: these courts conflated the factual issue of competency with the legal issue of due process.

The question presented by Filiaggi’s last claim is whether Filiaggi was entitled, as a procedural matter, to a competency hearing. According to the Supreme Court and our sister circuits, this question must be separated from the ultimate, factual question of Filiaggi’s competence to stand trial. See Drope, 420 U.S. at 175 n. 10, 95 S.Ct. 896 (warning in this exact context against *861confusing “issues of fact that are here foreclosed and issues which, though cast in the form of determinations of fact, are the very issues [for] review”); Pate, 383 U.S. at 385-86, 86 S.Ct. 836; McGregor v. Gibson, 248 F.3d 946, 952-54 (10th Cir.2001) (en banc) (“[A]n individual raising a procedural competency claim is held to a lower burden of proof than one raising a substantive competency claim.... [T]o prevail on a procedural competency claim petitioner need not establish facts sufficient to show he was actually incompetent or to show he was incompetent by a preponderance of the evidence.”); see also Battle v. United States, 419 F.3d 1292, 1298 (11th Cir.2005); Davis v. Woodford, 384 F.3d 628, 644 (9th Cir.2004); Walton v. Angelone, 321 F.3d 442, 459 (4th Cir.2003).

There was some evidence in the record that Filiaggi was competent. Under clearly established Supreme Court precedent, however, evidence of competence does not absolve a trial court of its obligation to hold a competency hearing. A state court that “fails to give proper weight to the information suggesting incompetence which came to light during trial,” violates the Constitution. Drope, 420 U.S. at 179, 95 S.Ct. 896. This is not to say that every request for a competency hearing must be granted. See, e.g., Maggio v. Fulford, 462 U.S. 111, 115, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam) (upholding state trial court’s refusal to entertain defendant’s “surprise, eleventh-hour motion for appointment of a competency commission”). But when two court officers, a medical doctor, and a court-appointed forensic psychologist all agree that a further competency evaluation is in order, and when such an evaluation is requested again and again on very specific bases (on behalf of a hallucinating defendant), a trial court judge is not free to focus exclusively upon whatever evidence suggests competence and otherwise turn a deaf ear. Such conduct directly contradicts a clearly established holding of the Supreme Court, see Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and denies a fundamental tenet of due process to a defendant facing the severest sanction known to the civilized world.

For the preceding reasons, I respectfully dissent.

. The majority quotes Drope in apparent support of the proposition that a determination of competence is a factual finding, to which deference must be paid. While this proposition is true, Drope does not speak to this issue. Read in or out of context, the portion of Drope quoted by the majority stands for the proposition that even one salient fact may necessitate a competency hearing. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (noting that any one factor, e.g., "a defendant's irrational behavior,” may be sufficient to require the trial court to hold a hearing).

.According to the Ohio Court of Appeals, defense counsel asked for further evaluation twice on July 13 alone. The court added: "Over the course of the ensuing trial, defense counsel repeatedly moved for another examination and for a mistrial on defendant's alleged incompetence to stand trial. Each time, the court denied the motions.” State v. Filiaggi, 1997 WL 778848 (Ohio Ct.App. Dec. 10, 1997). According to the Ohio Supreme Court, defense counsel asked for further evaluation twice on July 13, once on July 14, and added: "Defense counsel made similar motions concerning defendant's competence and requested a mistrial throughout the course of the trial." State v. Filiaggi, 86 Ohio St.3d 230, 714 N.E.2d 867, 873 (1999).

. Defense counsel claimed, inter alia, that Filiaggi could not communicate with them, that he was not able to follow the proceedings, that he was behaving irrationally, and that he exhibited elevated vitals signs. The trial court never sought confirmation of these claims.

. As the majority notes, a private psychiatrist evaluated Filiaggi a few days later. Far from contradict Dr. Haglund's opinion that Filiaggi was not malingering, Dr. Paul Markovitz averred that in his "unequivocal opinion,” Filiaggi had not been competent to participate in his own defense.