McGregor v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 11 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BILLY KEITH McGREGOR,

Petitioner - Appellant,
v.
No. 99-7038
GARY GIBSON, Warden,
Oklahoma State Penitentiary ,

Respondent - Appellee.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. CIV-97-120-B)

Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for the Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), State of Oklahoma, Oklahoma City,
Oklahoma, for Respondent-Appellee.

Before TACHA, Chief Judge, SEYMOUR, BALDOCK, BRORBY, EBEL,
KELLY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.
 Billy Keith McGregor was convicted under Oklahoma law of first-degree

murder and sentenced to death. A panel of this Court affirmed the district court’s

denial of habeas relief to McGregor. We subsequently granted rehearing en banc

to review our standard for assessing procedural competency claims. This standard

is of particular importance in the aftermath of the Supreme Court’s unanimous

decision in Cooper v. Oklahoma , 517 U.S. 348 (1996), holding unconstitutional

the Oklahoma law requiring criminal defendants to prove incompetency to stand

trial by clear and convincing evidence.

I. Background

McGregor was convicted by an Oklahoma jury of murdering Virgie Plumb,

the owner of a home in which he was a boarder. The victim disappeared on May

22, 1983, and was last seen as a passenger in her own car driven by McGregor.

The day after Plumb’s disappearance, McGregor attempted to sell an

antique clock and a car, both of which belonged to the victim. The following day

he cashed a check allegedly written to him by the victim. Later that day, a second

similar check was rejected for insufficient funds, and McGregor went to the

police to report the “bad check.”

In the following days, McGregor related several different stories to people

about his interactions with the victim. He told some that he had taken her to her

brother’s home and others that he had taken her to a convenience store and when

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he came to pick her up she was gone. After interviews with the police, McGregor

confessed to killing Plumb and leaving her body in a wooded rural area.

McGregor was convicted by a jury of first-degree murder and sentenced to

death. Pursuant to the Supreme Court’s decision in Ake v. Oklahoma , 470 U.S.

68 (1985), McGregor’s conviction and death sentence were reversed by the

Oklahoma Court of Criminal Appeals. McGregor v. Oklahoma , 754 P.2d 1216,

1218 (Okla. Crim. App. 1988) (holding that McGregor was entitled to a court-

appointed psychiatrist because a “[s]ufficient showing [was] . . . made to reflect

that appellant’s sanity at the time of the offense [might] be a significant factor at

trial”).

In 1989, McGregor was tried again for the murder of Plumb and raised the

defense of not guilty by reason of insanity. The jury rejected his defense and, for

the second time, convicted him of first-degree murder. At sentencing, the jury

found aggravating circumstances and sentenced McGregor to death. On direct

appeal, the Oklahoma Court of Criminal Appeals affirmed McGregor’s conviction

and death sentence. McGregor v. Oklahoma , 885 P.2d 1366 (Okla. Crim. App.

1994).

Before McGregor’s second trial, a competency proceeding was held and a

jury found McGregor competent to stand trial. At that proceeding, the jury was

instructed that McGregor had to prove incompetency by clear and convincing

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evidence. 1
The Supreme Court subsequently held the clear and convincing

evidence standard “incompatible with the dictates of due process” because it

allowed a state to “put to trial a defendant who [was] more likely than not

incompetent.” Cooper , 517 U.S. at 369. Accordingly, McGregor brought state

post-conviction proceedings to challenge, inter alia, the application to him of the

unconstitutional burden of proof. McGregor v. Oklahoma , 935 P.2d 332 (Okla.

Crim. App. 1997). His Cooper challenge was denied as procedurally barred, see

id. at 334, and McGregor sought habeas relief in federal court. The district court

also held that McGregor’s procedural competency claim was barred, McGregor v.

Ward , No. CIV-97-120-B, at 12–16 (E.D. Okla. Feb. 5, 1999) (unpublished

order), but assessed the merits and found McGregor did not meet his burden of

raising a bona fide doubt as to his competency during his criminal trial, id. at 16.

1
The State, in its closing arguments, read the instruction on the clear and
convincing evidence burden of proof:

When I say clear and convincing evidence, I mean that you must be
persuaded, considering all the evidence in the case, that the
Petitioner is incompetent as defined by these Instructions and that the
conclusion is unmistakable and free from serious or substantial doubt
as to its correctness.

(Comp. Trial Tr. at 232.) The State then opined that “[t]he law is correct in
assuming him competent and placing the burden on him to present the evidence . .
. .” (Id.)

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 On appeal, a panel of this Court affirmed the district court’s denial of

habeas relief under 28 U.S.C. § 2254. McGregor v. Gibson , 219 F.3d 1245 (10th

Cir. 2000). The panel was divided; Judge Murphy filed a dissenting opinion

expressing his disagreement with the “majority’s resolution of McGregor’s

procedural competency claim.” Id. at 1257. We granted en banc review to

consider this important issue: When may a defendant found competent to stand

trial under an unconstitutional “clear and convincing evidence” burden of proof

and then convicted succeed in habeas on a procedural competency claim?

II. Standard of Review

Because McGregor filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that Act

govern this appeal. See Williams v. Taylor , 529 U.S. 362, 402 (2000). Inasmuch

as the state court did not hear the merits of petitioner’s claim and the federal

district court made its own determination in the first instance, we review the

district court’s conclusions of law de novo and its factual findings for clear error.

See LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999). “If the district

court’s factual findings are based only on a review of the state court record, we

conduct an independent review.” Walker v. Gibson , 228 F.3d 1217, 1225 (10th

Cir. 2000) (citation omitted).

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 III. Competency to Stand Trial

A. Background

It is well-settled that the “criminal trial of an incompetent defendant

violates due process.” Medina v. California , 505 U.S. 437, 453 (1992). This

“prohibition is fundamental to an adversary system of justice.” Drope v.

Missouri , 420 U.S. 162, 172 (1975). The rule, rooted in the common law, is

likely a “by-product of the ban against trials in absentia; the mentally incompetent

defendant, though physically present in the courtroom, is in reality afforded no

opportunity to defend himself.” Id. at 171 (quoting Foote, A Comment on Pre-

Trial Commitment of Criminal Defendants , 108 U. Pa. L. Rev. 832, 834 (1960)). 2

The test for determining competency to stand trial is well-established. The

trier of fact must consider “whether [defendant] has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding—and

whether he has a rational as well as factual understanding of the proceedings

against him.” Dusky v. United States , 362 U.S. 402, 402 (1960). “That defendant

can recite the charges against [him], list witnesses, and use legal terminology are

2
One criminologist has stated that incompetent persons “are not really
present at trial; they may not be able properly to play the role of an accused
person, to recall relevant events, to produce evidence and witnesses, to testify
effectively on their own behalf, to help confront hostile witnesses, and to project
to the trier of facts a sense of their innocence.” Medina, 505 U.S. 437, 457–58
(1992) (Blackmun, J., dissenting) (quoting N. Morris, Madness and the Criminal
Law 37 (1982)).

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insufficient” to demonstrate that he had a rational, as well as factual,

understanding of the proceedings. United States v. Williams , 113 F.3d 1155,

1159 (10th Cir. 1997).

“[C]ompetency claims can raise issues of both substantive and procedural

due process.” Walker v. Att’y Gen. , 167 F.3d 1339, 1343 (10th Cir. 1999). A

procedural competency claim is based upon a trial court’s alleged failure to hold a

competency hearing, or an adequate competency hearing, while a substantive

competency claim is founded on the allegation that an individual was tried and

convicted while, in fact, incompetent. Id. at 1343–44. Accordingly, an individual

raising a procedural competency claim is held to a lower burden of proof than one

raising a substantive competency claim. See id. at 1344.

At issue in this appeal is McGregor’s procedural competency claim rooted

in his Fourteenth Amendment right to due process of law. Because the conviction

of an accused person while legally incompetent violates due process, states must

provide adequate procedures to protect accused individuals. See Pate v.

Robinson , 383 U.S. 375, 378 (1966). The burden of providing these procedures

persists throughout trial; thus, “[e]ven when a defendant is competent at the

commencement of his 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.” Drope , 420 U.S. at 181.

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 B. Procedural Incompetency Claims After Cooper

McGregor’s claim is one of many procedural incompetency claims this

Court has reviewed in the wake of the Supreme Court’s decision in Cooper . See,

e.g. , Walker v. Gibson , 228 F.3d at 1226–29; Valdez v. Ward , 219 F.3d 1222,

1239–41 (10th Cir. 2000); Van Woudenberg ex rel. Foor v. Gibson , 211 F.3d 560,

567–68 (10th Cir. 2000); Clayton v. Gibson , 199 F.3d 1162, 1168–72 (10th Cir.

1999); Barnett v. Hargett , 174 F.3d 1128, 1133–36 (10th Cir. 1999); Rogers v.

Gibson , 173 F.3d 1278, 1289–91 (10th Cir. 1999); Walker v. Att’y Gen. , 167 F.3d

at 1342–47. We have held repeatedly that when a criminal defendant’s

competency was determined under an unconstitutional burden of proof, the prior

competency determination merits no presumption of correctness. See, e.g. ,

Walker v. Gibson , 228 F.3d at 1227; Van Woudenberg , 211 F.3d at 567 n.5;

Clayton , 199 F.3d at 1171; Barnett , 174 F.3d at 1135; Walker v. Att’y Gen. , 167

F.3d at 1345. Under such circumstances, this Court will review the trial as if no

competency hearing was held at all. Van Woudenberg , 211 F.3d at 567 n.5

(“Because the state trial court held [petitioner] to an unconstitutional standard for

proving incompetency, its decision is not entitled to a presumption of correctness

and it is as if no competency hearing was held at all.” (citations omitted)); see

also Barnett , 174 F.3d at 1135; Walker v. Att’y Gen. , 167 F.3d at 1345.

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 Although it is clear that to prevail on a procedural due process competency

claim a petitioner must raise a bona fide doubt regarding his competency to stand

trial at the time of conviction, 3
the scope of that standard is less clear. We have

variously stated the bona fide doubt standard. In some cases we have enunciated,

tersely, that one can prevail on a procedural due process claim if he “establish[es]

a bona fide doubt as to his competency at trial.” Barnett , 174 F.3d at 1135; see

also Wallace v. Ward , 191 F.3d 1235, 1242 (10th Cir. 1999). In others we have

required petitioners to show that the “trial judge ignored facts raising a ‘bona fide

doubt’ regarding the petitioner’s competence to stand trial.” Van Woudenberg ,

211 F.3d at 567; see also Rogers , 173 F.3d at 1290. Yet in others we have

stressed that a petitioner must show “the trial court ignored evidence, which

viewed objectively, raised a bona fide doubt regarding [petitioner’s] competency

to stand trial.” Valdez , 219 F.3d at 1240; see also Walker v. Gibson , 228 F.3d at

3
See, e.g., Walker v. Gibson, 228 F.3d at 1227; Valdez, 219 F.3d at 1240;
Van Woudenberg, 211 F.3d at 567; Clayton, 199 F.3d at 1171; Wallace v. Ward,
191 F.3d 1235, 1242 (10th Cir. 1999); Barnett, 174 F.3d at 1135; Rogers, 173
F.3d at 1290; Walker v. Att’y Gen., 167 F.3d at 1345; United States v. Williams,
113 F.3d at 1160; cf. Drope, 420 U.S. at 180 (reversing the trial court on the basis
that the evidence presented by petitioner “created a sufficient doubt of his
competence to stand trial to require further inquiry on the question”); Nguyen v.
Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997) (requiring petitioner to make a
“showing by clear and convincing evidence to raise threshold doubt about his
competency” (internal quotation omitted)); United States v. Crews, 781 F.2d 826,
833 (10th Cir. 1986) (“To raise a substantial question requiring a competency
hearing there must be some evidence to create doubt on the issue.”).

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1227; Clayton , 199 F.3d at 1171; Walker v. Att’y Gen. , 167 F.3d at 1345.

Addressing procedural competency claims not induced by Cooper errors—i.e.,

claims based on the allegation that the trial court should have held a competency

hearing but did not—we have stated that “we must determine whether a

reasonable judge, situated as was the trial court judge whose failure to conduct an

evidentiary hearing is being reviewed, should have experienced doubt with

respect to competency to stand trial.” United States v. Crews , 781 F.2d 826, 833

(10th Cir. 1986) (internal quotation omitted); see also United States v. Williams ,

113 F.3d at 1160; cf. Nguyen v. Reynolds , 131 F.3d 1340, 1346 (10th Cir. 1997)

(“In order . . . to raise such doubt, [petitioner] must present facts sufficient to

positively, unequivocally and clearly generate a real, substantial and legitimate

doubt concerning his mental capacity” (internal quotation omitted)).

Today we are faced with the task of enunciating a single meaningful

standard for assessing procedural competency claims in cases in which the trial

court attempted—but failed—to protect an accused’s due process rights by

assessing his competency to stand trial under an unconstitutional burden of proof.

In so doing, we must be careful not to collapse the distinction between procedural

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and substantive due process by raising the level of proof required for procedural

competency claims to that of substantive competency claims. 4

Accordingly, we hold that to prevail on a procedural competency claim

after a trial in which a petitioner was found competent under an unconstitutional

burden of proof, the petitioner must establish that a reasonable judge should have

had a bona fide doubt as to his competence at the time of trial. We view the

evidence in the record objectively, from the standpoint of a reasonable judge

presiding over petitioner’s case at the time of trial. A petitioner establishes a

bona fide doubt if he shows that a reasonable judge should have doubted whether

petitioner had “sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding” and whether petitioner had “a

rational as well as factual understanding of the proceedings against him.” Dusky ,

362 U.S. at 402. We stress that the due process requirement is continuing; a

defendant must be competent throughout the entire trial. See Drope , 420 U.S. at

171–72, 181.

To prevail on a procedural competency claim petitioner need not establish

facts sufficient to show he was actually incompetent or to show he was

4
We reject as unsupported respondent’s argument that the “only true
difference between a procedural and substantive competency claim is that the
procedural claim may be waived and there is no ‘rebuttable presumption’ of
incompetence with a substantive claim.” (Appellee’s Supp. Br. at 4.)

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incompetent by a preponderance of the evidence. However, the mere fact that the

trial court granted a competency hearing will not suffice to demonstrate a bona

fide doubt. Although we treat the trial as if no competency hearing was held, see

Van Woudenberg , 211 F.3d at 567 n.5, we consider the record of, and the

evidence presented during, the competency hearing. 5

We realize that

[t]here are . . . no fixed or immutable signs which invariably indicate
the need for further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated. That they are
difficult to evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.

Drope , 420 U.S. at 180. That said, we look to longstanding precedent for

guidance regarding the factors to be considered in assessing a petitioner’s

procedural competency claim. “[E]vidence of . . . irrational behavior, . . .

demeanor at trial, and any prior medical opinion on competence to stand trial are

all relevant in determining whether further inquiry is required.” Drope , 420 U.S.

at 180; see also Walker v. Gibson , 228 F.3d at 1227; Valdez , 219 F.3d at 1240;

Van Woudenberg , 211 F.3d at 567; Clayton , 199 F.3d at 1171 (emphasizing that

5
Because the competency hearing was held before trial, the trial court had
an opportunity to hear the evidence and testimony presented during the
competency hearing as well as to observe the defendant and to hear additional
relevant evidence during trial. All of this evidence is considered in assessing
petitioner’s procedural competency claim under the standard we announce today.

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prior medical opinions regarding petitioner’s competency are “perhaps most

important”); Wallace , 191 F.3d at 1243; Rogers , 173 F.3d at 1290; Walker v.

Att’y Gen. , 167 F.3d at 1346. “Other relevant factors include evidence of mental

illness and any representations of defense counsel about the defendant’s

incompetence.” Walker v. Gibson , 228 F.3d at 1227 (citation omitted); see also

Drope , 420 U.S. at 177 n.13 (“Although we do not . . . suggest that courts must

accept without question a lawyer’s representations concerning the competence of

his client . . . an expressed doubt in that regard by one with the closest contact

with the defendant . . . is unquestionably a factor which should be considered.”

(interal quotations and citations omitted)); Barnett , 174 F.3d at 1135–36. “[E]ven

one of these factors standing alone may, in some circumstances, be sufficient.”

Drope , 420 U.S. at 180; see also Pate , 383 U.S. at 384–85 (holding petitioner’s

rights were violated by the trial court’s failure to conduct a hearing on

competency despite evidence that petitioner was lucid at trial because of the

“uncontradicted testimony of [petitioner’s] history of pronounced irrational

behavior”).

We emphasize that assessment of a procedural competency claim requires

us to form a judgment on the aggregate not the segment. We examine the totality

of the circumstances: all evidence should be considered together, no single factor

“stand[s] alone.” Drope , 420 U.S. at 180 (quotation omitted). The question is

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not, as we have sometimes stated, whether the trial court “ignored facts,” see,

e.g. , Van Woudenberg , 211 F.3d at 567, but rather whether the trial court

“fail[ed] to give proper weight to the information suggesting incompetence which

came to light during trial.” Drope , 420 U.S. at 179.

C. McGregor’s Competency to Stand Trial

After careful review of the record we conclude that McGregor’s procedural

due process rights were violated. A reasonable judge should have had a bona fide

doubt concerning McGregor’s continued competency to stand trial in light of the

inconsistent evidence concerning whether McGregor was properly medicated

throughout trial, counsel’s repeated and vehement contentions that his client was

unable to assist in his own defense, McGregor’s odd behavior at trial and, of

course, McGregor’s substantial history of mental illness. Our conclusion is based

on the totality of the circumstances, and we do not state an opinion as to

petitioner’s actual competency to stand trial. Although the state could

successfully argue that petitioner was properly medicated or provide a plausible

explanation for his seemingly odd behavior at trial, we recognize that hindsight is

20/20 and that our job is to view the record from the standpoint of a reasonable

judge at the time of trial who could not, and did not, benefit from such ex post

explanations.

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 1. Mental Health: Proper Medication

The evidence unquestionably shows that McGregor has a long and tortured

history of mental illness. ( See, e.g. , VIII Second Trial Tr. at 246, Testimony of

Dr. Brauchitsch (“The records, without exception, gave a very thorough and very

serious history of mental illness. As a matter of fact, probably more than one

mental illness. But, on one they all seemed to agree, that the patient did seem to

suffer from a psychosis, severe type of mental illness in which he suffered from

delusions, hallucinations, hearing imaginary voices, feeling that people could read

his mind in a delusional way and could influence his actions and the like.”).) At

trial, Dr. Brauchitsch, a psychiatrist, testified that McGregor’s mental illness was

likely related to complications during his birth involving oxygen deprivation

which resulted in brain damage. McGregor has been diagnosed consistently with

schizophrenia, paranoid type, and with anti-social personality disorder.

At a competency trial held in October 1988, McGregor’s father testified

that he and his wife knew McGregor likely had a disorder by the time McGregor

was three. At that young age, McGregor experienced noticeable one- to two-hour

periods of disorientation. By seven or eight McGregor began having vivid

delusions. McGregor set objects and himself on fire. By fourteen his parents

placed him in a mental hospital where he was given shock treatment—described

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as an unusually severe and traumatic treatment for a young child—and where he

began taking psychotropic medications.

As established at the competency trial, McGregor continues to experience

blackout spells and delusional symptoms. At times he hears voices telling him to

do things. Many years ago he was shot in the head four times and some bullet

fragments remain lodged in his head.

The prosecution presented the testimonies of a psychiatrist and a

psychologist at the 1988 competency trial. The psychiatrist, Dr. Lanier, testified

McGregor was competent to stand trial prior to his first trial in 1983. Dr.

Lanier’s testimony was drawn solely from the medical records of another doctor,

Dr. Garcia (deceased), whose evaluation of McGregor occurred five years prior to

Dr. Lanier’s testimony. Dr. Garcia’s 1983 medical opinion stated McGregor was

paranoid schizophrenic, yet competent to stand trial so long as “he continue[d

taking 400 milligrams of Mellaril a day] to retain his present degree of stability.”

(Id. at 150, 156.) The state’s second witness, psychologist Bill Gentry, examined

McGregor for forty-five minutes on July 25, 1988, three months prior to the

competency trial. Dr. Gentry testified “I felt like on the day that I interviewed

him he was competent to stand trial.” ( Id. at 179) He further testified that he had

no opinion as to McGregor’s competence to stand trial on the date of the

competency proceeding. His report on McGregor stated “[t]hat schizophrenic

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symptoms appear in remission at this time and I feel that is due primarily to the

effects of the medication.” ( Id. at 187)

The evidence presented at the competency proceeding and at McGregor’s

second criminal trial was that McGregor was legally competent so long as he

remained properly medicated. ( See, e.g. , id. at 150–56, Testimony of Dr. Lanier

(finding McGregor competent to stand trial in 1983 if “he continue[d taking 400

milligrams of Mellaril a day] to retain his present degree of stability”); id. at 187,

Testimony of Dr. Gentry (stating that “schizophrenic symptoms appear in

remission at this time and I feel that is due primarily to the effects of the

medication”); VIII Second Trial Tr. at 197, Testimony of Dr. Goodman ( “[W]hen

[McGregor] is in a structured, supervised situation and takes his medication . . .

he’s probably not going to show any psychotic signs.”).) Importantly,

McGregor’s continued proper medication was called into doubt multiple times at

trial. On day two of trial, McGregor complained of an extreme headache, and

counsel told the court McGregor’s dosage of Thorazine had been changed. On the

morning of day three, McGregor’s counsel again informed the court that

McGregor’s dosage had been changed and asked to call the penitentiary to find

out the proper prescription. In the afternoon, McGregor’s counsel asked for, and

was granted, an ex parte hearing on McGregor’s “sanity.” (III Second Trial Tr. at

97.) Two days later, on the morning of the fifth day of trial, the court noted on

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the record that the sheriff had told him McGregor refused to take his Thorazine.

Later that afternoon, McGregor did take his medicine which he claimed made him

drowsy. Accordingly, McGregor remained in his cell so he could sleep and

requested that the jailer wake him up at 2:30 p.m. to go back to trial. On day

eight, counsel informed the judge that his client was “complaining of some sort of

problems medically or mentally.” (VIII id. at 6.) Although defendant stayed

through the first part of trial, he asked to leave in the afternoon because he did

not feel well. The following morning, the court was told that the jail ran out of

Thorazine so that defendant received it later than usual.

Although each incident calling into question McGregor’s continued

medication might be explained such that it is not individually troubling,

considered together, all of the incidents call into doubt McGregor’s receipt of

proper medication throughout his trial. Given the expert testimony that

McGregor’s competency depended on his proper medication, along with counsel’s

assessment of McGregor’s competency and McGregor’s behavior discussed

below, the trial judge should have experienced doubt as to petitioner’s

competency to stand trial.

We consider the trial court’s failure to notice changes in McGregor’s

behavior inconclusive. The test for competency is “whether [defendant] has

sufficient present ability to consult with his lawyer with a reasonable degree of

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rational understanding—and whether he has a rational as well as factual

understanding of the proceedings against him.” Dusky , 362 U.S. at 402. In

finding McGregor’s behavior was not different as a result of the alleged change in

medications, the court did not find McGregor had been rationally consulting with

his attorney as required to demonstrate competency; rather, the court seemed to

find only that McGregor had not engaged in any inappropriate outbursts at trial.

Several times, the trial judge implied he was unable to assess McGregor’s

behavior as well as counsel because “I haven’t had to be seated next to him

throughout the trial.” (IX Second Trial Tr. at 125; see also V id. at 131 (“He

doesn’t seem any different to me today than he’s been any other day I’ve seen

him. I can honestly say that. Of course, I don’t sit next to him at Counsel table;

so I can’t answer for that.”).)

We also consider unconvincing the state’s citation to its own statement in

the record, based on hearsay from someone at the penitentiary, that “it would take

potentially two weeks of not taking any [psychotropic] medication . . . for it to

show up in any behavioral problems of the defendant.” (III id. at 13.) The state’s

argument that there was no material change in petitioner’s Thorazine dosage as

evidenced by the fact that his counsel, in the ex parte hearing on McGregor’s

“sanity,” focused on the jail’s failure to give McGregor Motrin for his headaches

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bears weight. 6
However, the explanation for the “changed dosage” does not

waylay concerns that should have arisen when the court was informed defendant

refused to take his Thorazine 7
and, more importantly, was informed that the jail

had insufficient supplies of Thorazine. 8

The above-mentioned problems with McGregor’s medications are

exacerbated by the change in the type of psychotropic medications he took. The

record establishes that at the time of Dr. Garcia’s competency opinion on October

6
Our review of petitioner’s medical records establishes that at trial the
proper dosage of Thorazine was 50 mg in the morning, 50 mg in the afternoon,
and 100 mg at night. We can not conclude from the medication records that
petitioner actually received those dosages. The medication records appear to be
signed by a prison official every time defendant was administered medicine;
however, during trial they are all initialed “OW” (i.e., outwitness), apparently
because the medicine was sent to the jail. We do not have medication records
from the jail.
7
The trial court’s concern that a criminal defendant should not be able to
control a trial simply by refusing to take his medicine is an open question. See
Riggins v. Nevada, 504 U.S. 127, 136 (1992) (declining to consider the “question
whether a competent criminal defendant may refuse antipsychotic medication if
cessation of medication would render him incompetent at trial”). However, we
need not answer that question here because we are concerned, in this case, by the
sheer number of incidents calling into doubt defendant’s continued proper
medication. His refusal to take his medication is just one such incident of many,
the rest of which were seemingly beyond his control.
8
The state’s inconsistent assertions as to the dosage of Thorazine
petitioner was supposed to receive added to the confusion concerning whether
petitioner was properly medicated and would have given a reasonable judge even
more cause to doubt petitioner’s competency to stand trial. (Compare III Second
Trial Tr. at 12 (state asserts dosage of Thorazine is 250 mg) with id. at 98 (state
says proper dosage is 200 mg).)

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17, 1983, before the first trial, 9
McGregor was deemed competent on 400 mg of

Mellaril per day. At the time of Dr. Gentry’s competency evaluation on July 7,

1988, McGregor was also deemed competent on Mellaril. The record on appeal

reveals that McGregor was taking 150 mg of Mellaril at the time of Dr. Gentry’s

examination but was taking 200 mg at the time of the competency trial. 10
At the

time of trial, McGregor was taking 200 mg of Thorazine (i.e., not Mellaril).

Frequent switches in the dosages and types of psychotropic medications indicate

that McGregor’s condition, although controllable, must be monitored and actively

maintained. Thus, any alleged variance in his medications should have caused the

trial court doubt. We reject the state’s argument that the type of psychotropic

medication was immaterial to petitioner’s competency to stand trial. During the

competency hearing, Dr. Lanier, a psychiatrist, testified that although Thorazine

and Mellaril are from the same family, Thorazine has different side effects;

namely, it is more sedating. ( See, e.g. , Comp. Trial Tr. at 165–66, Testimony of

Dr. Lanier (“[Mellaril] is in the same family [as Thorazine], but it has a whole lot

Dr. Garcia’s report was the basis of Dr. Lanier’s testimony at the
9

competency hearing.
10
Interestingly, until July 4, 1988, three days before his competency
evaluation, he had been prescribed only 50 mg of Mellaril a day. After the
evaluation, from September 24 to October 4, his Mellaril was again reduced to
50 mg a day. From October 5 to November 16, i.e., several weeks before his
competency hearing until several weeks after, his dosage was increased to 200 mg
per day. Finally, on November 16 he was switched to Thorazine, 250 mg per day.

- 21 -
of different properties . . . . One, it is not as sedating as Thorazine.”).) At trial,

the court heard further testimony that the two drugs are different. ( See VIII

Second Trial Tr. at 248, Testimony of Dr. Brauchitsch (“[Mellaril is] almost the

same [as Thorazine], just has somewhat less side effects.”).). The differences

between the two drugs could have explained McGregor’s alleged drowsiness on

the fifth day of trial which caused him to be absent for part of the day. While the

judge’s concern that McGregor could simply allege drowsiness from his

medications and thereby control the trial is appropriate, absent additional expert

testimony to the contrary there was sufficient evidence in the record to indicate

that McGregor’s behavior demonstrated questionable competence. His inability to

be present at trial rendered him unable to assist his counsel and thus, in

conjunction with the other allegations of error in medicating McGregor, should

have caused the trial court doubt as to his competency to stand trial as well.

2. Demeanor at Trial

Accompanying the doubts raised about McGregor’s proper medication

throughout trial, and thus about his ability to assist in his defense and understand

the proceedings, was evidence that McGregor acted in an unusual and

inappropriate manner for an individual facing a likely capital sentence. On the

first day of trial, McGregor had a temper tantrum because his shirt did not have a

pocket and “he thought it looked like a girl’s shirt.” (I Second Trial Tr. I at 56.)

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Apparently, after counsel bought him a shirt with a pocket on it and “some little

candy to chew” he calmed down. ( Id. at 56–57.) Fearing McGregor might disrupt

voir dire and thereby taint the entire juror pool, the court conducted voir dire of

each potential juror individually. At the end of the first day, after the voir dire of

a juror who had been a football coach, McGregor stated “Do you want a game of

basketball before we leave, one on one?” ( Id. at 227). At the end of the second

day of voir dire, McGregor demonstrated potential disorientation. He asked

“Where am I going?” and “Y’all going to take me to McAlester?” (II id. at 321.)

On day three, McGregor’s counsel informed the court that the jail would not let

McGregor shave because “they thought he was a risk and should not be allowed to

shave.” (III id. at 11.) Moreover, counsel told the court that McGregor “had at

least one black out this morning.” ( Id. ) On day five, the morning on which

McGregor refused to take his Thorazine, McGregor asked to leave the courtroom

and did not come back in the afternoon until the state insisted the sheriff wake

him up in his cell. At the beginning of day eight, McGregor’s counsel

immediately informed the court that McGregor was “complaining of some sort of

problems medically or mentally” and that counsel thought McGregor had “been

having flashbacks and blackouts already [that] morning.” (VIII id. at 6.) That

same day he asked to leave because he was not feeling well; he did, however,

come back after lunch.

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 As with the medications, although any one incident may be explained ex

post, the sum total of the evidence demonstrates a question as to McGregor’s

competency at trial. The state argues that McGregor’s basketball statement was

not surprising when viewed in the context in which it was made, i.e., after the

voir dire of a high school coach. Moreover, it argues that McGregor had a known

propensity for joking. We find the argument that the statement made sense in the

context of the trial unconvincing, particularly in light of the court reporter’s note,

immediately after McGregor’s statement, that “[t]hereupon, there was a brief

pause in the proceedings.” (I id. at 227.) If the statement were usual, it would

not have merited a pause in the proceedings which the reporter felt necessary to

record. The dubious evidence concerning McGregor’s medication at trial,

coupled with McGregor’s odd behavior, and his counsel’s concerns discussed

below, augments our conclusion that a reasonable judge should have had a doubt

about McGregor’s ability to aid in his defense and to understand the nature of the

proceedings.

3. Counsel’s Concerns

The final piece of the picture, and perhaps the most important, is Irven

Box’s—McGregor’s trial counsel’s—frequent assertions on the record that

McGregor was incompetent. “Although we do not . . . suggest that courts must

accept without question a lawyer’s representations concerning the competence of

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his client . . . an expressed doubt in that regard by one with the closest contact

with the defendant . . . is unquestionably a factor which should be considered.”

Drope , 420 U.S. at 178 n.13 (internal quotations and citations omitted). We have

stated that although “the concerns of counsel alone are insufficient to establish

doubt of a defendant’s competency,” “[d]efense counsel is often in the best

position to determine whether a defendant’s competency is questionable.” Bryson

v. Ward , 187 F.3d 1193, 1201–02 (10th Cir. 1999), cert. denied , 120 S. Ct. 1566

(2000). Unlike other procedural incompetency claims this Court has considered,

in this case not only did McGregor have a history of mental illness and act

strangely at trial, but his lawyer was adamant throughout trial that McGregor was

incompetent. Cf. Walker v. Gibson , 228 F.3d at 1228 (rejecting petitioner’s

procedural competency claim, in part because trial counsel “explicitly denied

raising to the [trial] court that [petitioner] was not competent to stand trial” and

“[a]t no time did counsel request a competency evaluation or hearing”); Clayton ,

199 F.3d at 1171 (finding no doubt as to petitioner’s competency at the time of

trial where counsel declined to express “serious” concerns about his client);

Walker v. Att’y Gen. , 167 F.3d at 1346–47 (rejecting petitioner’s procedural

incompetency claim, in part because trial counsel never raised the issue of

petitioner’s competency at trial).

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 At the competency trial, Box testified McGregor was unable to assist in his

own defense in large part because he was unable to focus and he did not

understand the nature of the charges against him. 11
Box’s opinion was based on

his considerable experience with representing criminal defendants—he stated he

11
Box testified as follows at the competency trial:

A. He could not relate to me, at least more than a minute or two, any
consistent thought pattern. He would go into a thought about the
case and I started immediately asking some background and then
asked him about the case and he would start in on some things and
then he would be like he became a different person and would change
over into a complete, maybe a year or two, different in time-thought
patterns and change over into different thoughts or conversation with
me. That persisted to the point of, at times I thought that he was
even getting out of control. In fact, actually I became fearful a
couple of times in that—when I was locked in the room with him.
Q. Did he ever give unresponsive answers to questions that you
propounded to him?
A. Several occasions I would ask a question and he would answer
something that would have no particular meaning nor understanding
to me at all of what the question was. It did not even relate to the
question.
...
He showed no concern nor interest in [the murder charge and the
possible range of punishment for that charge].
...
Q. Out of the total time period that you visited with Mr. McGregor
on that first occasion, how much of your conversation was
worthwhile to you in the preparation of this defense?
A. None of it was worthwhile to help me realistically prepare the
defense of the crime itself. All of it was worthwhile in me being
able to see what type of a person he was and what I thought he was.

(Comp. Trial Tr. at 104–07.)

- 26 -
represented “[h]undreds per year”—as well as his experience as a police officer,

an assistant district attorney, and a judge. (Comp. Trial Tr. at 101.) After

explaining McGregor’s flare-up about wearing a shirt with no pocket, Box stated,

“It’s something maybe my five year old son might say. Of course, my theory is

he’s like a five year old.” (I Second Trial Tr. at 56.) On the third day of trial,

Box informed the court that McGregor had been “disoriented” the previous day

and was unable to assist him. (III id. at 100.) In discussing the possible

consequences of McGregor’s refusal to take his medication on the fifth day of

trial, Box stated, “We do still have to keep in mind that, in my opinion, we’re

dealing with somebody who is incompetent, who has exhibited incompetent

behavior before.” (V id. at 10.) Later on that day, Box again made clear that

McGregor was not “competent to assist or stand trial.” ( Id. at 131.) On day

seven, Box stated “I would put in the record that . . . he has not assisted me, he

has hindered me from the day this trial started until this very second. He has

hindered me in regards to this case and talked nonsense the whole time. I still

think he’s crazy.” (VII id. at 207.) 12 Finally, on the last day of trial, Box

12
The conversation prior to Box’s statement concerned whether or not the
court reporter had failed to write down loud statements McGregor made that Box
feared the jury could hear. Box made a record of the fact that he thought the
defendant had been “continually . . . loud and verbal and has made comments we
think that could even be heard by jurors in this particular case.” (VII Second
Trial Tr. at 205–06.) In response, the court stated that it was obvious McGregor
(continued...)

- 27 -
requested that the jury be removed from the courtroom when he officially rested

the case. He informed the court of McGregor’s repeated threats to become

disruptive once the verdict was read.

It’s not just my feeling, he has adamantly told me that every single
day of this trial for nine days. He has told me that visiting with him
at the penitentiary, that if the jury does that, what he is going to do.
He has actually, himself, written out, verbatim what he is going to
say to the jury when that verdict is read. He has told me that. I have
no reason to doubt what he is going to do. That statement to me will
absolutely kill him, literally and figuratively, kill him when he does.

(IX id. at 126–27.) Finally, Box stated that “I have not ever dealt, in my career,

with someone like this person.” ( Id. at 124.) Although the court noted defendant

had not been disruptive during trial, the court had defendant put in the law library

with the door open so he could hear the verdict read but could not make a scene in

front of the jury.

The state tries to undermine the significance of Box’s assessment of

McGregor’s competency. In its brief, the state argues that McGregor’s

competency was demonstrated by his testimony, on his own behalf, at a

suppression hearing. Even were we to credit the state’s interpretation of that

12
(...continued)
was talking to Box but that he and the jury could not hear the contents of their
conversations. Counsel for the state similarly stated they could not hear the
conversations and, inexplicably, also stated their opinion that McGregor had
actually been assisting his lawyer throughout trial.

- 28 -
event, the due process requirement of competency continues throughout trial; one

instant of demonstrable competency on McGregor’s part does not overshadow the

numerous occasions, occurring before and after McGregor’s testimony, in which

his competency was called into doubt. The state also argues that Box’s testimony

at the competency trial was “effectively rebutted by the State’s witnesses during

that hearing and Petitioner was found competent.” (Appellee’s Supp. Br. at 19.)

The “found competent” aspect of the argument is circuitous in that it would have

us credit the outcome of an unconstitutional competency trial and, moreover,

Box’s statements about McGregor’s competency to stand trial are examined in the

context of the further evidence of incompetency that arose during trial. The state

writes off petitioner’s threats to disrupt trial because “the record is devoid of even

one incident where petitioner was disruptive or engaged in outrageous conduct.”

(Id. at 19.) But McGregor’s continued threats of disruption, although never

carried to fruition, must be read as evidence of his inability to assist in his

defense. Moreover, the threat to interrupt at the reading of the phase-one verdict

demonstrates a failure to understand the nature of the jury’s role in determining

his fate at phase two of the trial. Finally, we reiterate that the court’s failure to

notice anything odd about petitioner’s behavior is not determinative. The court

admitted Box was in a better position to assess petitioner because he was sitting

next to him at trial. Moreover, Dr. Brauchitsch’s testimony established that it

- 29 -
would not be apparent from limited interactions with McGregor that he was

incompetent. Dr. Brauchitsch’s testimony supports the proposition that someone

who had much opportunity to interact with McGregor, such as his counsel, might

be better able to assess his condition than someone who merely observed him

from the bench.

[Box]: Doctor, can someone who has and who is schizophrenic, can
they function in society and walk around and say, not be readily
observed as say, a nut, a crazy or something of that nature?

[Dr. Brauchitsch]: . . . Many of them can, superficially so, certainly a
few would encounter somebody in the street and, you know, he
doesn’t carry a sign, “I’m a schizophrenic” and unless you ask him
very specifically questions like, do you hear imaginary voices or do
you think people can read your mind or something like this, which
you probably wouldn’t do, you know, if you just meet him in the
street or just talk to him, you might never find out, you know, what is
wrong just by seeing him and talking to him briefly. Unless you
know what kind of questions to ask, you wouldn’t get the answers
that would allow you to realize how sick the patient really is.

(VII Second Trial Tr. at 256.) The state’s reliance on the court’s failure to notice

changes in McGregor’s behavior is therefore misplaced. Review of the record

shows that although the court had an opportunity to see McGregor, the court very

rarely interacted with McGregor verbally. Absent such verbal interaction, we do

not find the court’s statements that McGregor was not acting any differently from

one day to the next probative of McGregor’s ability to aid his counsel in his own

defense.

- 30 -
 IV. Remedy

Our conclusion that McGregor’s procedural due process rights were

violated does not end the analysis. We next consider whether a retrospective

competency hearing can be held. Our analysis is guided by Supreme Court

precedent, Circuit precedent, and the considered decisions of the other Circuit

Courts of Appeal. See, e.g. , Drope , 420 U.S. at 183; Pate , 383 U.S. at 386–87;

Dusky , 362 U.S. at 403; Clayton , 199 F.3d at 1168–70; Reynolds v. Norris , 86

F.3d 796, 802–03 (8th Cir. 1996).

Retrospective competency hearings are generally “disfavored” but are

“permissible whenever a court can conduct a meaningful hearing to evaluate

retrospectively the competency of the defendant.” Clayton , 199 F.3d at 1169

(internal quotation omitted); see also Pate , 383 U.S. at 387 (emphasizing “the

difficulty of retrospectively determining an accused’s competence to stand trial”).

In the context of deciding whether a state court’s retrospective determination of a

petitioner’s competency violated that petitioner’s due process rights, we

announced factors to be considered in assessing whether a meaningful

retrospective determination can be made:

(1) [T]he passage of time, (2) the availability of contemporaneous
medical evidence, including medical records and prior competency
determinations, (3) any statements by the defendant in the trial
record, and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position to interact with

- 31 -
 defendant before and during trial, including the trial judge, counsel
for both the government and defendant, and jail officials.

Clayton , 199 F.3d at 1169.

The facts pertinent to our assessment of whether a meaningful retrospective

competency determination can be made in McGregor’s case are discussed

throughout this opinion; thus, we revisit them only briefly now. We are

influenced greatly by the lack of contemporaneous medical evidence in the record

regarding McGregor’s competency at the time of trial. See, e.g. , Dusky , 362 U.S.

at 403 (concluding no retrospective competency determination could be held “[i]n

view of the doubts and ambiguities regarding the legal significance of the

psychiatric testimony”); cf. Reynolds v. Norris , 86 F.3d at 803 (holding

petitioner’s procedural due process rights were violated by the trial court’s failure

to conduct an additional competency hearing but concluding a sufficient basis

existed for the retrospective determination of petitioner’s competency because of

the “unusual amount of contemporaneous evidence specifically relating to

[petitioner’s] competency at the time of trial”). As discussed above, only one

psychiatrist testified for the state at McGregor’s competency hearing. That

doctor’s testimony was not based on his own experiences with McGregor; rather,

it was based solely on then five-year-old notes—now seventeen-year-old

notes—of another doctor taken before McGregor’s first trial. The psychologist

who appeared at McGregor’s competency proceeding also presented severely

- 32 -
limited testimony. He refused to opine as to McGregor’s competency on the day

of the proceeding and limited his assessment to McGregor’s competency during a

forty-five minute interview that occurred three months prior to the competency

proceeding, which itself occurred about seven months before McGregor’s second

trial. This disturbing lack of contemporaneous medical evidence regarding

McGregor’s competency at the competency proceeding must be viewed in light of

the serious questions raised at trial regarding McGregor’s proper medication and

the corresponding lack of record evidence available to help answer those

questions. Finally, although we emphasize that time is not an insurmountable

barrier to a retrospective competency determination, the difficulties arising from

the lack of contemporaneous medical evidence are amplified by the further

difficulties that necessarily arise from the significant passage of time. A

retrospective competency determination would have to place great reliance on the

testimony of currently available lay witnesses concerning their recollections of

any observations of McGregor more than eleven years ago.

Based on our assessment of the factors set forth in Clayton and the totality

of the record before us, we conclude that a meaningful retrospective competency

determination can not be made in this case. As such, McGregor’s due process

rights can not adequately be protected by remanding to the state court for such a

determination. We make this determination in the first instance, as did the

- 33 -
Supreme Court in Drope , 420 U.S. at 183, Pate , 383 U.S. at 387, and Dusky , 362

U.S. at 403. Although we considered remanding to the federal district court to

hold a hearing on the issue of whether a meaningful retrospective competency

determination can be made, we reject that approach because of the particular

balance of circumstances in this case.

V. Conclusion

Accordingly, we GRANT McGregor’s request for habeas corpus relief, we

REVERSE the judgment of the district court, and we REMAND with directions

to vacate McGregor’s sentence and judgment of conviction. The State of

Oklahoma is free to try McGregor again, but only if he is determined competent

under a constitutional burden of proof.

- 34 -
No. 99-7038 – MCGREGOR v. GIBSON

BRORBY, Circuit Judge, dissenting. TACHA, Chief Judge, and BALDOCK,
Senior Circuit Judge, joining in the dissent.

I respectfully dissent.

The legal analysis of Mr. McGregor’s procedural competency claim as set

forth in the majority en banc opinion is essentially the same as that applied by the

majority and dissenting panel members in McGregor v. Gibson , 219 F.3d 1245

(10th Cir. 2000). At each stage we asked whether the evidence and

circumstances known to the trial court should have raised a bona fide doubt in

the mind of a reasonable jurist about Mr. McGregor’s ability either to consult

with his attorneys with a reasonable degree of rational understanding or to

possess a rational and factual understanding of the judicial proceedings. See

majority en banc op. at 11-14; McGregor , 219 F.3d at 1250-52; id. at 1257-58

(Murphy, J. dissenting). To answer this question we looked at relevant factors

such as Mr. McGregor’s demeanor at trial, evidence of irrational behavior, prior

medical opinions regarding competency, evidence of mental illness, defense

counsel’s representations and the trial judge’s observations. Majority op. at 12-

13; McGregor , 219 F.3d at 1251-52; id. at 1257-58 (Murphy, J. dissenting). The

issue here, then, is not what law to apply. Rather, it is how established law

applies to the facts of record in this case.
 Two of the three panel members, exercising their best judgment,

determined Mr. McGregor failed to show a bona fide doubt existed concerning

his competency at the time of his second trial. McGregor , 219 F.3d at 1252.

Now, after exercising their best judgment, six members – a majority – of the en

banc court have determined a reasonable jurist would have harbored such a

doubt. Majority op. at 31. This numbers game reveals an unfortunate, inherent

shortcoming in our capital case habeas corpus jurisprudence. Some death row

inmates whose cases present “close calls” garner enough appellate votes to secure

federal habeas relief. Some do not.

After carefully reviewing the record, I continue to believe Mr. McGregor

has failed to carry his burden of establishing a bona fide doubt in the mind of a

reasonable jurist that he was competent to stand trial. The totality of the

circumstances and evidence strongly suggest to this reasonable jurist Mr.

McGregor deftly toyed with defense counsel and the trial court. Under these

circumstances, I believe the observations and reasoned judgment of the trial

judge carry significant weight. I would affirm the district court’s order denying

habeas relief on all grounds.

-2-