dissenting:
Out of this maze of complex legal and factual issues, unconventional party alliances, multiple proceedings and numerous court findings, one stark conclusion follows from the position taken by my colleagues: we are without jurisdiction to review the merits of findings by the trial court which we ordered on remand—findings which we thought to be constitutionally required in order to sustain the conviction of Mr. Briggs for armed robbery. See Briggs v. United States, 525 A.2d 583, 594-95 (D.C.1987) {Briggs I). Today, we dismiss this case because amicus, appointed by the trial court, presumably to insure “full presentation of the issues remanded,” has no standing in this court to represent Mr. Briggs on appeal. If that be the case, and the majority may be technically correct, I suggest that the posture of this case, and the status of Mr. Briggs, require the appointment of additional counsel and/or review by this court in its supervisory power. See D.C.Code § 17-306 (1989 Repl.).
The urgency of this matter is underscored by a brief explanation. In Briggs I,
*376supra, we remanded this case to the trial court for an inquiry and a determination, inter alia, as to whether appellant had made a voluntary and intelligent decision at the time of trial to waive an insanity defense in accord with the dictates of Frendak v. United States, 408 A.2d 364 (D.C.1979). Briggs I, supra, 525 A.2d at 594-95. Because of a perceived conflict of interest on the part of trial counsel (Public Defender Service), counsel took the commendable view that because of its client’s insistence as to competency, it could not ethically argue on remand its client’s incompetency and productivity. It prevailed upon the court to appoint amicus for these purposes. The trial court, relying specifically upon the language of the remand order, rejected the argument of amicus that it should redetermine the issue of appellant’s competency to stand trial. The court found, however, that appellant was neither competent at trial or at the timé of the hearing to knowingly and intelligently waive the defense of insanity. Following through on our instructions, the trial court considered thé issue of whether there was a causal relationship between the criminal conduct and appellant’s mental disease. The court found that there was no productivity issue and thus that the convictions for armed robbery and carrying a pistol without a license should stand.
It is this rather bizarre set of circumstances that has prompted amicus, appointed by the trial court, to raise in this court the irrefutable fact that due process forbids the conviction of a legally incompetent defendant1 and to suggest that sufficient doubt of appellant’s competency to stand trial exists to require another determination of that fact. Amicus has been permitted at least the privilege of filing a notice of appeal. Indeed a previous division of this court has ruled that amicus could brief the issues before this court and we have heard argument. I would urge that amicus be appointed as co-counsel by this court and that the merits of the case be reached.
This case is troubling because in context, there is a real question (which we did not address in Briggs I in view of our disposition) as to whether Briggs was properly found competent to stand trial in the first instance. Certainly the evaluations and recommendations of the experts cast significant doubt on this issue. See Briggs I, supra, 525 A.2d at 585-87. Moreover, facially speaking, since a defense is a necessary component of a trial, it is difficult to see how a defendant who has been found incompetent to waive that defense at trial (except for the passage of time and a waxing and waning of a long term mental disease) could have been found to have been competent to stand trial. To the extent that Frendak rejected the arguments that the two findings were identical, an argument advanced by the government in Frendak in purported reliance on Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812 (en banc), cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed.2d 100 (1965), I point out that Frendak did not reject Whalem. Frendak did not hold that the two findings could not be identical. Rather, Frendak interpreted Whalem to require, on a case-by-case basis, that a trial judge, before interposing a defense of insanity for a defendant who has been found competent to stand trial, conduct a second inquiry as to competency if the defendant chooses not to utilize that defense to avoid conviction at trial. Thus, Frendak, in effect, guarantees to a defendant not only the right to be able to rationally understand his (or her) predicament but the right to make intelligent decisions central to his defense.
In the instant case, I view the argument of amicus — that the question of appellant’s competency to stand trial must be revisited — to be a correct one. It is true that the trial court has complied with the letter of our order on remand. See Briggs I, supra, 525 A.2d at 594-95. It found that, at the time of trial, Mr. Briggs was not competent to waive the defense that he waived and that he was not competent to do so at the time of the hearing. In my view, on this *377record, because Mr. Briggs was not competent to intelligently waive the defense at trial, he could not have been competent to stand trial.
As I have noted above, Frendak is not to the contrary. Frendak speaks of a second inquiry. The first and second inquiries are not separate as to purpose but supplementary as to purpose. Both inquiries insure that a defendant whose sanity has been questioned is competent. See also Anderson v. Sorrell, 481 A.2d 766 (D.C.1984). The first inquiry insures that the defendant is competent to understand that he has a right to assert a defense; the second inquiry insures that he is competent to waive that defense. The second inquiry arises only because of the first inquiry. The second inquiry insures that a defendant whose sanity has been questioned, but who has been found before trial to be competent to stand trial is in fact competent at trial. This is why in Frendak we held that it was error for the trial court to interpose a defense of insanity for such a defendant without determining whether the defendant was then competent to waive that defense. Put somewhat indelicately, Frendak protects the right of a defendant who is somewhat out of the norm to decide whether he or she wants to accept the risk of going to jail or to a mental institution.
The sanity of Mr. Briggs, like that of the defendant in Frendak, was questioned before trial. Like Frendak, Briggs was found competent to stand trial. Like Fren-dak, Briggs wished to waive the defense of insanity at trial. As in Frendak, no second inquiry was made. Unlike Frendak, no defense of insanity was interposed. Unlike Frendak, the question of whether Briggs was insane at the time of the commission of an offense has not been put to a jury but has been relegated to the decision of a trial judge many years after the commission of the crime. Briggs has been convicted of armed robbery and sentenced to consecutive sentences of fourteen to forty-two years and two to six years. Yet, past and present records reek of reports that he is or was a profoundly ill man, as well as some conclusions that he was incompetent for trial on June 6, 1983. Because he has been found to have been incapable of making the intelligent choice as whether to go to jail or a mental hospital within the rationale of the balance sought by Frendak, supra, (see Kern, J., concurring, 408 A.2d at 382), it seems somehow cruel to make him bear the consequence of our remand without the opportunity to challenge in this court the possibility of inconsistency between pre-trial and post-trial findings. This would be the “exercise in arid logic [which should not render] ... constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve.” Frendak, supra, 408 A.2d at 375, citing North Carolina v. Alford, 400 U.S. 25, 39, 91 S.Ct. 160, 168, 27 L.Ed.2d 162 (1970).
. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1974); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).