## F I L E D United States Court of Appeals Tenth Circuit 

### APR 11 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILLY KEITH McGREGOR, Petitioner - Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary , Respondent - Appellee. No. 99-7038

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.- 2 -

Billy Keith McGregor was convicted under Oklahoma l aw of first-degree murder and sentenced to death. A panel of this Cou rt affirmed the district court’s denial of habeas relief to McGregor. We subsequent ly 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 p rove incompetency to stand trial by clear and convincing evidence. I. Background McGregor was convicted by an Oklahoma jury of murde ring 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 o wn 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 v ictim. 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 dif ferent stories to people about his interactions with the victim. He told so me that he had taken her to her brother’s home and others that he had taken her to a convenience store and when- 3 -

he came to pick her up she was gone. After intervi ews 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 mu rder 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 McGregorwas entitled to a courtappointed psychiatrist because a “[s]ufficient show ing [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 j ury rejected his defense and, for the second time, convicted him of first-degree murd er. At sentencing, the jury found aggravating circumstances and sentenced McGre gor to death. On direct appeal, the Oklahoma Court of Criminal Appeals affi rmed McGregor’s conviction and death sentence. McGregor v. Oklahoma , 885 P.2d 1366 (Okla. Crim. App. 1994). Before McGregor’s second trial, a competency procee ding 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 convincing1 The State, in its closing arguments, read the ins truction on the clear and

convincing evidence burden of proof: When I say clear and convincing evidence, I mean th at 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 orsubstantial doubt as to its correctness. (Comp. Trial Tr. at 232.) The State then opined th at “[t]he law is correct in assuming him competent and placing the burden on hi m to present the evidence . . . .” (Id. ) - 4 - evidence. 1 The Supreme Court subsequently held the clear andconvincing evidence standard “incompatible with the dictates of due process” because it allowed a state to “put to trial a defendant who [w as] more likely than not incompetent.” Cooper , 517 U.S. at 369. Accordingly, McGregor brought s tate post-conviction proceedings to challenge, inter ali a, 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 feder al 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, 19 99) (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.- 5 -

On appeal, a panel of this Court affirmed the distr ict 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 fi led a dissenting opinion expressing his disagreement with the “majority’s re solution 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 convinci ng evidence” burden of proof and then convicted succeed in habeas on a procedura l competency claim?
II. Standard of Review Because McGregor filed his habeas petition after th e effective date of the Antiterrorism and Effective Death Penalty Act of 19 96, 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 petit ioner’s claim and the federal district court made its own determination in the fi rst 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 reviewof the state court record, we conduct an independent review.” Walker v. Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000) (citation omitted).2 One criminologist has stated that incompetent per sons “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 evide nce and witnesses, to testify effectively on their own behalf, to help confront h ostile 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. Morri s, Madness and the Criminal Law37 (1982)). - 6 - III. Competency to Stand Trial A. Background It is well-settled that the “criminal trial of an i ncompetent 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 th e common law, is likely a “by-product of the ban against trials in a bsentia; the mentally incompetent defendant, though physically present in the courtro om, is in reality afforded no opportunity to defend himself.” Id. at 171 (quoting Foote, A Comment on PreTrial 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] ha s 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 unders tanding of the proceedings against him.” Dusky v. United States , 362 U.S. 402, 402 (1960). “That defendant can recite the charges against [him], list witnesse s, and use legal terminology are- 7 -

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 subst antive 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 c ourt’s alleged failure to hold a competency hearing, or an adequate competency heari ng, 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 co mpetency claim rooted in his Fourteenth Amendment right to due process of law. Because the conviction of an accused person while legally incompetent viol ates due process, states must provide adequate procedures to protect accused individuals. See Pate v. Robinson , 383 U.S. 375, 378 (1966). The burden of providin g these procedures persists throughout trial; thus, “[e]ven when a def endant is competent at the commencement of his trial, a trial court must alway s be alert to circumstances suggesting a change that would render the accused u nable to meet the standards of competence to stand trial.” Drope , 420 U.S. at 181.- 8 - B. Procedural Incompetency Claims After Cooper McGregor’s claim is one of many procedural incompet ency 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 cr iminal 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 Courtwill 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] t o 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 1345.3 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 p etitioner to make a “showing by clear and convincing evidence to raise threshold doubt about his competency” (internal quotation omitted)); United S tates v. Crews , 781 F.2d 826, 833 (10th Cir. 1986) (“To raise a substantial quest ion requiring a competency hearing there must be some evidence to create doubton the issue.”).

- 9 - Although it is clear that to prevail on a procedura l due process competency claim a petitioner must raise a bona fide doubt reg arding 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 p rocess 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 cou rt ignored evidence, which viewed objectively, raised a bona fide doubt regard ing [petitioner’s] competency to stand trial.” Valdez , 219 F.3d at 1240; see also Walker v. Gibson , 228 F.3d at- 10 -

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 courtshould have held a competency hearing but did not—we have stated that “we must de termine whether a reasonable judge, situated as was the trial court j udge 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 re al, substantial and legitimate doubt concerning his mental capacity” (internal quo tation omitted)). Today we are faced with the task of enunciating a s ingle 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 un constitutional burden of proof. In so doing, we must be careful not to collapse the distinction between procedural4 We reject as unsupported respondent’s argument th at the “only true

difference between a procedural and substantive competency claim is that the procedural claim may be waived and there is no ‘reb uttable presumption’ of incompetence with a substantive claim.” (Appellee’ s Supp. Br. at 4.) - 11 - 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 procedura l competency claim after a trial in which a petitioner was found compe tent under an unconstitutional burden of proof, the petitioner must establish thata reasonable judge should have had a bona fide doubt as to his competence at the t ime of trial. We view the evidence in the record objectively, from the standp oint of a reasonable judge presiding over petitioner’s case at the time of tri al. A petitioner establishes a bona fide doubt if he shows that a reasonable judge should have doubted whether petitioner had “sufficient present ability to consu lt with his lawyer with a reasonable degree of rational understanding” and wh ether 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 re quirement 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 petitio ner need not establish facts sufficient to show he was actually incompetent or to show he was5 Because the competency hearing was held before tr ial, the trial court had

an opportunity to hear the evidence and testimony p resented during the competency hearing as well as to observe the defend ant and to hear additional relevant evidence during trial. All of this eviden ce is considered in assessing petitioner’s procedural competency claim under the standard we announce today. - 12 - incompetent by a preponderance of the evidence. Ho wever, the mere fact that the trial court granted a competency hearing will not s uffice 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, a nd 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 t o proceed; the question is often a difficult one in which a wide r ange of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying o pinions trained psychiatrists can entertain on the same facts. Drope , 420 U.S. at 180. That said, we look to longstand ing 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- 13 -

prior medical opinions regarding petitioner’s compe tency 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 includ e 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 . . . s uggest 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 factorwhich 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 ci rcumstances, 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 t o conduct a hearing on competency despite evidence that petitioner was luc id at trial because of the “uncontradicted testimony of [petitioner’s] historyof pronounced irrational behavior”). We emphasize that assessment of a procedural compet ency claim requires us to form a judgment on the aggregate not the segm ent. We examine the totality of the circumstances: all evidence should be consid ered together, no single factor “stand[s] alone.” Drope , 420 U.S. at 180 (quotation omitted). The questio n is- 14 -

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 cou rt “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 thatMcGregor’s procedural due process rights were violated. A reasonable jud ge should have had a bona fide doubt concerning McGregor’s continued competency to stand trial in light of the inconsistent evidence concerning whether McGregor w as properly medicated throughout trial, counsel’s repeated and vehement c ontentions that his client was unable to assist in his own defense, McGregor’s oddbehavior at trial and, of course, McGregor’s substantial history of mental il lness. Our conclusion is based on the totality of the circumstances, and we do notstate an opinion as to petitioner’s actual competency to stand trial. Alt hough the state could successfully argue that petitioner was properly med icated 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 n ot, benefit from such ex post explanations.- 15 -

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, g ave 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 agr ee, that the patient did seem to suffer from a psychosis, severe type of mental illn ess in which he suffered from delusions, hallucinations, hearing imaginary voices , feeling that people could read his mind in a delusional way and could influence hi s actions and the like.”).) At trial, Dr. Brauchitsch, a psychiatrist, testified t hat McGregor’s mental illness was likely related to complications during his birth in volving 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, McGrego r’s father testified that he and his wife knew McGregor likely had a dis order by the time McGregor was three. At that young age, McGregor experiencednoticeable one- to two-hour periods of disorientation. By seven or eight McGre gor began having vivid delusions. McGregor set objects and himself on fir e. By fourteen his parents placed him in a mental hospital where he was given shock treatment—described- 16 -

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 co ntinues 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 psyc hiatrist and a psychologist at the 1988 competency trial. The psy chiatrist, 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 medica l records of another doctor, Dr. Garcia (deceased), whose evaluation of McGregoroccurred five years prior to Dr. Lanier’s testimony. Dr. Garcia’s 1983 medical opinion stated McGregor was paranoid schizophrenic, yet competent to stand tria l 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, psychol ogist Bill Gentry, examined McGregor for forty-five minutes on July 25, 1988, three months prior to the competency trial. Dr. Gentry testified “I felt lik e 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 tri al on the date of the competency proceeding. His report on McGregor stat ed “[t]hat schizophrenic- 17 -

symptoms appear in remission at this time and I fee l 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 “schizophreni c symptoms appear in remission at this time and I feel that is due prima rily to the effects of the medication”); VIII Second Trial Tr. at 197, Testimo ny of Dr. Goodman ( “[W]hen [McGregor] is in a structured, supervised situationand takes his medication . . . he’s probably not going to show any psychotic signs .”).) Importantly, McGregor’s continued proper medication was called i nto 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 Thorazi ne had been changed. On the morning of day three, McGregor’s counsel again info rmed the court that McGregor’s dosage had been changed and asked to cal l the penitentiary to find out the proper prescription. In the afternoon, McG regor’s counsel asked for, and was granted, an ex parte hearing on McGregor’s “san ity.” (III Second Trial Tr. at 97.) Two days later, on the morning of the fifth d ay of trial, the court noted on- 18 -

the record that the sheriff had told him McGregor r efused to take his Thorazine. Later that afternoon, McGregor did take his medicin e 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 w as “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 wa s told that the jail ran out of Thorazine so that defendant received it later than usual. Although each incident calling into question McGreg or’s continued medication might be explained such that it is not i ndividually 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 doub t as to petitioner’s competency to stand trial. We consider the trial court’s failure to notice cha nges in McGregor’s behavior inconclusive. The test for competency is “whether [defendant] has sufficient present ability to consult with his lawy er with a reasonable degree of- 19 -

rational understanding—and whether he has a rationa l 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 be en rationally consulting with his attorney as required to demonstrate competency; rather, the court seemed to find only that McGregor had not engaged in any inap propriate outbursts at trial. Several times, the trial judge implied he was unabl e 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 be en 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 pe nitentiary, that “it would take potentially two weeks of not taking any [psychotrop ic] 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 petit ioner’s Thorazine dosage as evidenced by the fact that his counsel, in the ex p arte hearing on McGregor’s “sanity,” focused on the jail’s failure to give McG regor Motrin for his headaches6 Our review of petitioner’s medical records establ ishes 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 me dication records appear to be signed by a prison official every time defendant wa s administered medicine; however, during trial they are all initialed “OW” ( i.e., outwitness), apparently because the medicine was sent to the jail. We do n ot have medication records from the jail.

7The trial court’s concern that a criminal defenda nt should not be able to control a trial simply by refusing to take his medi cine 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 a ntipsychotic medication if cessation of medication would render him incompetent at trial”). However, we need not answer that question here because we are c oncerned, in this case, by the sheer number of incidents calling into doubt defend ant’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 dos age of Thorazine petitioner was supposed to receive added to the con fusion concerning whether petitioner was properly medicated and would have gi ven a reasonable judge even more cause to doubt petitioner’s competency to stan d trial. (Compare III Second Trial Tr. at 12 (state asserts dosage of Thorazine is 250 mg) withid. at 98 (state says proper dosage is 200 mg).) - 20 - bears weight. 6 However, the explanation for the “changed dosage” does not waylay concerns that should have arisen when the co urt was informed defendant refused to take his Thorazine 7and, 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 psychotrop ic medications he took. The record establishes that at the time of Dr. Garcia’s competency opinion on October9 Dr. Garcia’s report was the basis of Dr. Lanier’s testimony at the

competency hearing.

10 Interestingly, until July 4, 1988, three days bef ore his competency evaluation, he had been prescribed only 50 mg of Me llaril a day. After the evaluation, from September 24 to October 4, his Mel laril 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 d osage was increased to 200 mg per day. Finally, on November 16 he was switched t o Thorazine, 250 mg per day. - 21 - 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 comp etency evaluation on July 7, 1988, McGregor was also deemed competent on Mellari l. 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 psych otropic medications indicate that McGregor’s condition, although controllable, m ust be monitored and actively maintained. Thus, any alleged variance in his medi cations should have caused the trial court doubt. We reject the state’s argument that the type of psychotropic medication was immaterial to petitioner’s competenc y to stand trial. During the competency hearing, Dr. Lanier, a psychiatrist, tes tified that although Thorazine and Mellaril are from the same family, Thorazine ha s 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 T horazine], but it has a whole lot- 22 -

of different properties . . . . One, it is not as s edating 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. Brauchits ch (“[Mellaril is] almost the same [as Thorazine], just has somewhat less side ef fects.”).). The differences between the two drugs could have explained McGregor ’s alleged drowsiness on the fifth day of trial which caused him to be absen t for part of the day. While the judge’s concern that McGregor could simply allege d rowsiness from his medications and thereby control the trial is approp riate, absent additional expert testimony to the contrary there was sufficient evid ence in the record to indicate that McGregor’s behavior demonstrated questionable competence. His inability to be present at trial rendered him unable to assist h is counsel and thus, in conjunction with the other allegations of error in medicating McGregor, should have caused the trial court doubt as to his compete ncy to stand trial as well. 2. Demeanor at Trial Accompanying the doubts raised about McGregor’s pro per medication throughout trial, and thus about his ability to ass ist in his defense and understand the proceedings, was evidence that McGregor acted i n an unusual and inappropriate manner for an individual facing a lik ely capital sentence. On the first day of trial, McGregor had a temper tantrum b ecause his shirt did not have a pocket and “he thought it looked like a girl’s shirt.” (I Second Trial Tr. I at 56.)- 23 -

Apparently, after counsel bought him a shirt with apocket 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 t he 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 d isorientation. 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 courtthat 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 McG regor “had at least one black out this morning.” ( Id. ) On day five, the morning on which McGregor refused to take his Thorazine, McGregor as ked to leave the courtroom and did not come back in the afternoon until the st ate 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 “c omplaining of some sort of problems medically or mentally” and that counsel th ought 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 feeli ng well; he did, however, come back after lunch.- 24 -

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 McGrego r’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 arg ues that McGregor had a known propensity for joking. We find the argument that t he 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]he reupon, 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 medicati on at trial, coupled with McGregor’s odd behavior, and his couns el’s concerns discussed below, augments our conclusion that a reasonable ju dge 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 mos t important, is Irven Box’s—McGregor’s trial counsel’s—frequent assertion s 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- 25 -

his client . . . an expressed doubt in that regard by one with the closest contact with the defendant . . . is unquestionably a factorwhich 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 coun sel 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 claim s this Court has considered, in this case not only did McGregor have a history o f mental illness and act strangely at trial, but his lawyer was adamant thro ughout 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” c oncerns about his client); Walker v. Att’y Gen. , 167 F.3d at 1346–47 (rejecting petitioner’s proce dural incompetency claim, in part because trial counsel n ever raised the issue of petitioner’s competency at trial).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 tho ught about the case and I started immediately asking some backgrou nd and then asked him about the case and he would start in on s ome things and then he would be like he became a different person and would change over into a complete, maybe a year or two, differen t in time-thought patterns and change over into different thoughts orconversation with me. That persisted to the point of, at times I tho ught that he was even getting out of control. In fact, actually I b ecame fearful a couple of times in that—when I was locked in the ro om with him. Q. Did he ever give unresponsive answers to questi ons that you propounded to him? A. Several occasions I would ask a question and he would answer something that would have no particular meaning norunderstanding 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 ch arge and the possible range of punishment for that charge].

. . . Q. Out of the total time period that you visited w ith Mr. McGregor on that first occasion, how much of your conversati on was worthwhile to you in the preparation of this defens e? A. None of it was worthwhile to help me realistica lly prepare the defense of the crime itself. All of it was worthwh ile 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 - 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 crimi nal defendants—he stated he12 The conversation prior to Box’s statement concern ed whether or not the

court reporter had failed to write down loud statem ents McGregor made that Box feared the jury could hear. Box made a record of t he fact that he thought the defendant had been “continually . . . loud and verb al 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 state d that it was obvious McGregor (continued...) - 27 - 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. at56.) On the third day of trial, Box informed the court that McGregor had been “diso riented” 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 medi cation on the fifth day of trial, Box stated, “We do still have to keep in min d that, in my opinion, we’re dealing with somebody who is incompetent, who has e xhibited incompetent behavior before.” (V id. at 10.) Later on that day, Box again made clear t hat 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 unt il this very second. He has hindered me in regards to this case and talked nons ense the whole time. I still think he’s crazy.” (VII id. at 207.) 12 Finally, on the last day of trial, Box12 (...continued)

was talking to Box but that he and the jury could n ot 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 - requested that the jury be removed from the courtro om when he officially rested the case. He informed the court of McGregor’s repe ated 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 th at visiting with him at the penitentiary, that if the jury does that, wh at 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 st atement to me will absolutely kill him, literally and figuratively, ki ll 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 haddefendant put in the law library with the door open so he could hear the verdict rea d but could not make a scene in front of the jury. The state tries to undermine the significance of Bo x’s assessment of McGregor’s competency. In its brief, the state arg ues that McGregor’s competency was demonstrated by his testimony, on hi s own behalf, at a suppression hearing. Even were we to credit the st ate’s interpretation of that- 29 -

event, the due process requirement of competency co ntinues throughout trial; one instant of demonstrable competency on McGregor’s part does not overshadow the numerous occasions, occurring before and after McGr egor’s testimony, in which his competency was called into doubt. The state al so argues that Box’s testimony at the competency trial was “effectively rebutted b y 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 cir cuitous in that it would have us credit the outcome of an unconstitutional compet ency 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 be cause “the record is devoid of even one incident where petitioner was disruptive or eng aged in outrageous conduct.” (Id. at 19.) But McGregor’s continued threats of disruption, although never carried to fruition, must be read as evidence of hi s 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 re iterate 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 pet itioner because he was sitting next to him at trial. Moreover, Dr. Brauchitsch’s testimony established that it- 30 -

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 schiz ophrenic, can they function in society and walk around and say, n ot be readily observed as say, a nut, a crazy or something of that nature? [Dr. Brauchitsch]: . . . Many of them can, superfic ially so, certainly a few would encounter somebody in the street and, youknow, he doesn’t carry a sign, “I’m a schizophrenic” and unl ess you ask him very specifically questions like, do you hear imagi nary voices or do you think people can read your mind or something li ke this, which you probably wouldn’t do, you know, if you just mee t him in the street or just talk to him, you might never find ou t, 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 ge t the answers that would allow you to realize how sick the patient really is. (VII Second Trial Tr. at 256.) The state’s relianc e on the court’s failure to notice changes in McGregor’s behavior is therefore misplac ed. Review of the record shows that although the court had an opportunity to see McGregor, the court very rarely interacted with McGregor verbally. Absent s uch verbal interaction, we do not find the court’s statements that McGregor was n ot acting any differently from one day to the next probative of McGregor’s abilityto aid his counsel in his own defense.- 31 - IV. Remedy Our conclusion that McGregor’s procedural due proce ss rights were violated does not end the analysis. We next consid er whether a retrospective competency hearing can be held. Our analysis is gu ided by Supreme Court precedent, Circuit precedent, and the considered de cisions 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 “di sfavored” but are “permissible whenever a court can conduct a meaning ful 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 accuse d’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 whe ther a meaningful retrospective determination can be made: (1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and pri or competency determinations, (3) any statements by the defendantin the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a positio n to interact with- 32 -

defendant before and during trial, including the tr ial judge, counsel for both the government and defendant, and jail off icials. 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 onlybriefly now. We are influenced greatly by the lack of contemporaneous m edical 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 dete rmination could be held “[i]n view of the doubts and ambiguities regarding the le gal significance of the psychiatric testimony”); cf. Reynolds v. Norris , 86 F.3d at 803 (holding petitioner’s procedural due process rights were vio lated by the trial court’s failure to conduct an additional competency hearing but con cluding a sufficient basis existed for the retrospective determination of peti tioner’s competency because of the “unusual amount of contemporaneous evidence spe cifically 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 experie nces with McGregor; rather, it was based solely on then five-year-old notes—nowseventeen-year-old notes—of another doctor taken before McGregor’s fir st trial. The psychologist who appeared at McGregor’s competency proceeding al so presented severely- 33 -

limited testimony. He refused to opine as to McGre gor’s competency on the day of the proceeding and limited his assessment to McG regor’s competency during a forty-five minute interview that occurred three months prior to the competency proceeding, which itself occurred about seven month s before McGregor’s second trial. This disturbing lack of contemporaneous med ical evidence regarding McGregor’s competency at the competency proceeding must be viewed in light of the serious questions raised at trial regarding McG regor’s proper medication and the corresponding lack of record evidence available to help answer those questions. Finally, although we emphasize that tim e 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 signif icant passage of time. A retrospective competency determination would have t o place great reliance on the testimony of currently available lay witnesses conc erning 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 meaning ful retrospective competency determination can not be made in this case. As suc h, 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 f irst instance, as did the- 34 -

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 convi ction. The State of Oklahoma is free to try McGregor again, but only if he is determined competent under a constitutional burden of proof.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 essentiall y 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 rati onal 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 w e 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 obs ervations. 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.- 2 -

Two of the three panel members, exercising their be st 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 memb ers – a majority – of the en banc court have determined a reasonable jurist woul d have harbored such a doubt. Majority op. at 31. This numbers game reve als an unfortunate, inherent shortcoming in our capital case habeas corpus juris prudence. Some death row inmates whose cases present “close calls” garner en ough 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 bo na fide doubt in the mind of a reasonable jurist that he was competent to stand tr ial. 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 reaso ned judgment of the trial judge carry significant weight. I would affirm the district court’s order denying habeas relief on all grounds.