FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASPER N. MCMURTREY, III, 

No. 03-99002 Petitioner-Appellee,

D.C. No. v. 

CV-88-00844-TUCCHARLES L. RYAN, Warden, WFN

Respondent-Appellant. 

JASPER N. MCMURTREY, III,  No. 03-99009

Petitioner-Appellant, D.C. No.

v.  CV-88-00844-TUCWFN CHARLES L. RYAN, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the District of Arizona

Wm. Fremming Nielsen, Senior Judge, Presiding

Argued and Submitted

March 21, 2006—San Francisco, California

Filed August 21, 2008

Before: Harry Pregerson, William A. Fletcher, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Pregerson

11215
COUNSEL

Gregory Kuykendall, Kuykendall & Associates; Natman

Schaye, Chandler & Udall, LLP, for the petitioner. 

Terry Goddard, Attorney General; Kent E. Cattani, Chief

Counsel, Capital Litigation Section; Patricia A. Nigro, Assistant Attorney General, Arizona Attorney General’s Office, for

the respondent.

OPINION

PREGERSON, Circuit Judge: 

The State of Arizona appeals the federal district court’s

grant of habeas corpus relief to Petitioner Jasper N.

11218 MCMURTREY v. RYAN
McMurtrey, III, in this pre-AEDPA case.1

 The district court

concluded that McMurtrey’s due process rights were violated

when the Arizona trial court failed to hold a hearing to determine whether McMurtrey was competent to stand trial,

despite considerable evidence suggesting that he was not. See

Pate v. Robinson, 383 U.S. 375, 385 (1966).2 This violation,

the court held, was not cured by a subsequent hearing. The

federal district court also found that McMurtrey’s trial counsel rendered ineffective assistance because his failure to

renew a request for a competency hearing regarding

McMurtrey’s competency at the time of trial was objectively

unreasonable. McMurtrey cross-appeals the federal district

court’s denial of nine other due process and ineffective assistance claims. 

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

For the reasons set forth below, we affirm the district court’s

finding that there was substantial evidence, particularly by the

time of sentencing, to suggest that McMurtrey’s due process

rights were violated when the state trial court failed to hold

1AEDPA is the Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214, which altered the role of the federal

habeas court in reviewing state prisoner applications brought under 28

U.S.C. § 2254. See Bell v. Cone, 535 U.S. 685, 693 (2002). Under

AEDPA, the federal court may reject a state court’s judgment only if it

was “contrary to” or “involved an unreasonable application of” clearly

established federal law as determined by the United States Supreme Court.

28 U.S.C. § 2254(d)(1). However, AEDPA does not apply to the merits of

petitions filed before April 24, 1996, the effective date of the Act. See

Caswell v. Calderon, 363 F.3d 832, 836 n.3 (9th Cir. 2004). Because

McMurtrey filed his first federal habeas petition in 1988, before AEDPA’s

1996 enactment, AEDPA does not affect our analysis. 

2The purpose of a competency hearing is to determine whether the

defendant is able (1) to understand the nature of the present criminal proceedings, and (2) to assist counsel in a rational manner. People v. Masterson, 8 Cal. 4th 965, 971 (1994); see also Godinez v. Moran, 509 U.S. 389,

401 n.12 (1993) (“The focus of a competency inquiry is the defendant’s

mental capacity; the question is whether he has the ability to understand

the proceedings.”). 

MCMURTREY v. RYAN 11219
a hearing to determine whether he was competent to stand

trial and be sentenced. We also hold that this violation was

not cured by a subsequent hearing. Because we affirm the federal district court on this ground, violation of due process, we

do not reach the district court’s decision on McMurtrey’s

claim of ineffective assistance of counsel. We also do not

reach McMurtrey’s cross-appeal of his nine due process and

ineffective assistance claims. 

FACTUAL AND PROCEDURAL HISTORY

I. Factual Background 

Early in the morning on August 10, 1979, McMurtrey shot

and killed two men and seriously injured a third man in an

incident at the Ranch House Bar in Tucson, Arizona.

McMurtrey and the three victims had apparently engaged in

loud conversations about their toughness and had armwrestled, chewed glass, and shown off their tattoos.

McMurtrey eventually went out to the parking lot and

obtained a revolver from an acquaintance. He then returned to

the bar, approached the victims, and fired the gun until it was

empty. McMurtrey fled the state. In August 1980, approximately one year later, McMurtrey was arrested in Topeka,

Kansas, and returned to Arizona for prosecution in the Ranch

House shooting. 

II. Procedural History 

A. State Court Proceedings 

At trial, which began in July 1981, represented by attorney

Bertram Polis and his associate counsel Henri Sadacca,

McMurtrey did not deny shooting the victims. Rather,

McMurtrey pleaded the defenses of self-defense, lack of premeditation, and insanity. On July 13, 1981, the jury returned

a verdict of guilty on two counts of premeditated first degree

murder and one count of attempted first degree murder. Pima

11220 MCMURTREY v. RYAN
County Superior Court Judge Jack Arnold found no mitigating factors and found that the fact that McMurtrey had created

a grave risk of death to persons other than the intended victims was an aggravating factor. In August 1981, Judge Arnold

sentenced McMurtrey to death for both murders and to a

twenty-one-year term of imprisonment for the attempted murder conviction. 

The Arizona Supreme Court affirmed the convictions and

the sentence for attempted murder but vacated the death sentences, finding that the state trial court may not have considered fully all of McMurtrey’s mitigation evidence. See State

v. McMurtrey, 664 P.2d 637, 645-46 (Ariz. 1983). After a

new sentencing hearing, Judge Arnold resentenced

McMurtrey to death. The Arizona Supreme Court, however,

again vacated the death sentence and remanded for resentencing on account of the trial court’s misapplication of the “beyond a reasonable doubt” standard to McMurtrey’s mitigation

evidence. See State v. McMurtrey, 691 P.2d 1099, 1100-01

(Ariz. 1984). Judge Arnold held a third sentencing hearing

and again imposed the death sentences. This time, in 1986,

the Arizona Supreme Court affirmed the death sentences. See

State v. McMurtrey, 726 P.2d 202 (Ariz. 1986). 

In July 1987 McMurtrey filed a petition for PostConviction Relief (“PCR”) and, with new counsel, an

amended petition in September 1987, asserting, inter alia, (1)

that Polis provided ineffective assistance in failing to request

a timely competency hearing, and (2) that McMurtrey had

been mentally incapable of assisting Polis during trial.

Attached to the petition was an affidavit from Sadacca, Polis’s

associate counsel, stating that during the trial McMurtrey was

either heavily sedated or extremely agitated. Sadacca noted

that McMurtrey’s alternating states of sedation and agitation

made it difficult for McMurtrey (1) to assist with the preparation of his defense, and (2) to concentrate during pre-trial

interviews or courtroom proceedings. On February 26, 1988,

Judge Arnold denied the petition, finding that all of the issues

MCMURTREY v. RYAN 11221
were barred because McMurtrey could have raised them on

direct appeal or were otherwise precluded. Judge Arnold

denied the request for rehearing in April 1988. In September

1988, the Arizona Supreme Court denied review. 

In October 1989, McMurtrey filed a second petition for

PCR in state court. McMurtrey contended that the jail’s

administration of medication had rendered him mentally

incompetent at trial. Affidavits from McMurtrey and Polis

were attached to the PCR petition. McMurtrey’s affidavit

stated that he had been given “heavy doses of a great variety

of drugs before, during, and after” trial that prevented him

from being able to think clearly or to assist in his defense.

Polis’s affidavit stated that he witnessed irrational displays of

anger and extreme mood swings and that McMurtrey’s mental

state worsened as the trial proceeded. On June 20, 1990, the

state trial court dismissed McMurtrey’s second amended petition for PCR on procedural grounds. In April 1991, the Arizona Supreme Court denied review and in May 1991 denied

McMurtrey’s motion to reconsider. McMurtrey filed a third

petition for PCR about victim impact statements that was

denied in November 1991; review was denied in May 1992.

B. Federal Habeas Proceedings 

McMurtrey filed a habeas petition in federal district court

on December 19, 1988. The district court stayed the proceedings in September 1989 to allow him to exhaust the previously mentioned ineffective assistance of counsel and

competency claims contained in his second petition for PCR

in state court. In May 1991, after McMurtrey’s second petition for PCR was dismissed, the federal district court lifted

the stay and allowed him to file an amended habeas petition.

McMurtrey filed an amended petition in August 1991 raising

twenty-six claims. McMurtrey filed a second amended petition in May 1992. 

Following oral argument on preclusion issues in February

1994, in March 1994 District Judge Richard M. Bilby con11222 MCMURTREY v. RYAN
cluded that, under Arizona law, the state trial court had erroneously precluded the ineffective assistance claim raised in

McMurtrey’s first petition for PCR without providing an evidentiary hearing or ruling on the merits. Judge Bilby therefore

stayed habeas proceedings and remanded so that the state

court could address the merits of the ineffective assistance

claim in McMurtrey’s first petition for PCR. 

In November and December 1994, Judge Arnold conducted

a six-day evidentiary hearing on that and other claims. In May

1995, Judge Arnold denied relief, finding that McMurtrey had

been mentally competent for trial and that the performance of

McMurtrey’s counsel had not been deficient. McMurtrey petitioned for review in November 1995. Again, the Arizona

Supreme Court denied review of the third petition for PCR.

In May 1997, the Arizona Supreme Court denied review of

McMurtrey’s fourth petition for PCR, filed in April 1996 and

based on the use of a hypnotized witness, and denied review

of Judge Arnold’s evidentiary ruling. 

On November 18, 1997, the federal district court lifted its

stay and allowed McMurtrey to file a third amended habeas

petition raising forty-three claims. McMurtrey filed a fourth

petition in May 1998 enhancing one of his claims. Judge

Bilby died on August 11, 1998, and the case was reassigned

to Judge William F. Nielsen on September 28, 1998.3

In an order entered March 6, 2000, addressing

McMurtrey’s fourth amended petition, the federal district

court ruled that portions of twenty-eight of McMurtrey’s

fourty-four habeas claims were procedurally defaulted and

that McMurtrey established neither (1) cause and prejudice,

nor (2) a fundamental miscarriage of justice to excuse the

defaults. The district court directed further briefing on the

3

Judge Nielsen, a district judge from the Eastern District of Washington,

appears to have been sitting by designation in Arizona district court when

he received this case. 

MCMURTREY v. RYAN 11223
merits of the remaining claims, which included the claim that

the state trial court erred in not ordering an evidentiary hearing on McMurtrey’s competence to stand trial. 

On March 4, 2003, in a thorough fifty-three-page memorandum and order, the district court granted habeas relief to

McMurtrey. McMurtrey v. Ryan, No. 88-844 (D. Ariz. Mar.

4, 2003). The district court found that substantial evidence

before the trial court “was sufficient to raise a reasonable

doubt as to [McMurtrey’s] competency to stand trial” such

that the trial court should have ordered a hearing on the issue,

a violation not cured by the 1994 hearing, and that counsel

had provided ineffective assistance with respect to this issue.

The district court denied the remainder of McMurtrey’s guiltphase claims, finding that they lacked merit, but did not rule

on the due process challenge to the question of McMurtrey’s

actual incompetence. Finally, the district court denied

McMurtrey’s sentencing-related claims without prejudice.

The court deemed its order a “conditional” writ of habeas corpus. It did not require that McMurtrey be released from custody outright; instead, by granting the petition, the district

court delayed McMurtrey’s release from custody for 180 days

to give the State an opportunity to initiate new trial proceedings. 

The State filed a timely notice of appeal, but inadvertently

failed to request a stay of the judgment under Federal Rule of

Civil Procedure 62. In September 2003 McMurtrey moved for

a dismissal of the prosecution with prejudice or his release

with conditions and pending appeal. In October 2003 the state

made an untimely motion for a stay of the enforcement of the

court’s judgment. The district court held a hearing in December 2003 and concluded that release was appropriate. The

court found that: (1) the State failed to present evidence that

McMurtrey was a danger to the community; (2) the State’s

interests would not be harmed irreparably absent a stay; (3)

the State’s opening appellate brief did not demonstrate a likelihood of success; and (4) McMurtrey would suffer substantial

11224 MCMURTREY v. RYAN
injury each day of continued incarceration. The district court

also held that the State’s inaction was not sufficient to warrant

a finding that the State be barred from retrying McMurtrey.

McMurtrey was released that same month. 

C. The Appeal and Cross-Appeal 

The State appeals the district court’s decision, contending

that: (1) the district court erred by rejecting Judge Arnold’s

1994 finding that McMurtrey failed to prove that he was

incompetent, and (2) McMurtrey necessarily failed to prove

ineffective assistance of counsel because McMurtrey failed to

prove that he was incompetent to stand trial. McMurtrey

cross-appealed, presenting nine challenges to the district

court’s decision. 

STANDARD OF REVIEW

The district court’s decision to grant or deny a 28 U.S.C.

§ 2254 habeas petition is reviewed de novo. See Miles v.

Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). The district

court’s findings of fact are reviewed for clear error. See

McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir. 2003)

(noting that the standard is “significantly deferential”). We

owe less deference to state court factual findings under preAEDPA law, but “we must still presume such findings to be

correct unless they are ‘not fairly supported by the record.’ ”

Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir. 1998) (quoting 28 U.S.C. § 2254(d)(8) (1996)). In contrast to cases in

which a habeas petition was filed after the enactment of

AEDPA, here we need not defer to state court rulings on

questions of law “since the federal court is not formally

reviewing a judgment, but is determining whether the prisoner

is ‘in custody in violation of the Constitution or laws or treaties of the United States.’ ” Lambrix v. Singletary, 520 U.S.

518, 523 (1997) (quoting 28 U.S.C § 2254(a)).4 That is, “we

4

See supra note 1. 

MCMURTREY v. RYAN 11225
‘simply resolve the legal issue on the merits, under the ordinary rules.’ ” Summerlin v. Schriro, 427 F.3d 623, 628-29

(9th Cir. 2005) (en banc) (citation omitted). 

ANALYSIS

McMurtrey claims that his procedural due process rights

were violated by the state trial court’s failure to conduct a

competency hearing. The federal district court found that the

evidence before the state trial court raised a reasonable doubt

as to McMurtrey’s competence to stand trial and, therefore,

that the state trial court should have ordered a competency

hearing. 

[1] In Pate, the Supreme Court held that a state court must

follow adequate procedures to protect against the conviction

of a criminal defendant who is incompetent to stand trial. 383

U.S. at 386. “To be competent to stand trial, a defendant must

demonstrate an ability ‘to consult with his lawyer with a reasonable degree of rational understanding’ and a ‘rational as

well as factual understanding of the proceedings against

him.’ ” Douglas v. Woodford, 316 F.3d 1079, 1094 (9th Cir.

2003) (quoting Godinez, 509 U.S. at 396 (internal quotations

and citation omitted)). When “the evidence raises a ‘bona fide

doubt’ ” about the defendant’s competence to stand trial, a

trial judge must sua sponte conduct an evidentiary hearing.

Pate, 383 U.S. at 385; see also Odle v. Woodford, 238 F.3d

1084, 1087 (9th Cir. 2001) (same). 

Due process requires a state court to hold a hearing where

substantial evidence before the court “indicate[s] the need for

further inquiry” into the defendant’s competency. Drope v.

Missouri, 420 U.S. 162, 180 (1975). Because there are no

“fixed or immutable signs which invariably indicate the need

for further inquiry to determine fitness to proceed[,] the question [of competency] is often a difficult one in which a wide

range of manifestations and subtle nuances are implicated.”

Id.; see also Williams v. Woodford, 384 F.3d 567, 604 (9th

11226 MCMURTREY v. RYAN
Cir. 2004) (“Although no particular facts signal a defendant’s

incompetence, suggestive evidence includes the defendant’s

demeanor before the trial judge, irrational behavior of the

defendant, and available medical evaluations of the defendant’s competence to stand trial.”). 

In reviewing whether a state trial judge should have conducted a competency hearing, we may consider only the evidence that was before the trial judge. See Williams v.

Woodford, 384 F.3d at 604. We therefore review the record

to determine whether the evidence before the state trial court

raised a “bona fide doubt” that McMurtrey was competent to

stand trial. See Pate, 383 U.S. at 385; de Kaplany v. Enomoto,

540 F.2d 975, 979 (9th Cir. 1976) (en banc). If a reasonable

judge would have had such a doubt, McMurtrey was entitled

to a competency hearing, and the failure to hold such a hearing violated his right to due process. See Moran v. Godinez,

57 F.3d 690, 695 (9th Cir. 1994) (superseded on other

grounds by AEDPA). 

For the reasons set forth below, we find that the evidence

available to Judge Arnold when McMurtrey was tried and

sentenced was sufficient to raise a reasonable doubt as to

McMurtrey’s competency to stand trial and be sentenced.

Accordingly, we affirm the decision of the federal district

court that McMurtrey’s right to due process of law was violated by the state trial court’s failure to conduct a hearing on

McMurtrey’s competence to stand trial. 

I. There Was Sufficient Evidence Before the State Trial

Court to Raise a Reasonable Doubt as to McMurtrey’s

Competency to Stand Trial 

Evidence concerning McMurtrey’s competence to stand

trial included evidence about McMurtrey’s medications, as

well as reports and testimony from doctors and prison officials presented to the trial court at relevant stages of the proceedings. We first provide an overview of the evidence before

MCMURTREY v. RYAN 11227
the Arizona court pre-trial and during trial, pre-sentencing,

and sentencing. We then explain why this evidence is sufficient to raise a reasonable doubt as to McMurtrey’s competence. 

A. Evidence at Pre-Trial

On December 9, 1980, eight months before trial, attorney

Polis filed a motion for a competency examination and a hearing to determine McMurtrey’s competency to stand trial under

Arizona Rule of Criminal Procedure Rule 11 (“Rule 11”).

Polis requested that the examination be conducted in a “hospital atmosphere” so that McMurtrey could be examined in a

drug-free state and subjected to intensive psychiatric and neurological tests to determine the extent of his medical problems. The motion, which the State opposed, stated that

McMurtrey could not adequately assist counsel because of

McMurtrey’s poor memory about the crime, the court’s

administration of anti-psychotic drugs, McMurtrey’s history

of mental health problems, and his need for medication.

Attached to the motion was an excerpt of a medical report

showing that McMurtrey had been admitted to the psychiatric

unit of a hospital at age fifteen. 

McMurtrey’s motion was supported by an examination

done by Dr. David Gurland, a psychiatrist retained by

McMurtrey. In a letter dated November 7, 1980, Dr. Gurland

noted that McMurtrey had a history of head injuries and mental health problems, along with a longstanding history of psychological problems that stemmed from unresolved issues

surrounding McMurtrey’s father’s fatal shooting of

McMurtrey’s mother and her lover when McMurtrey was

seven years old. Dr. Gurland opined that McMurtrey, who

began suffering seizures as an adolescent, had a “marginal”

adjustment to high school, “with a schizoid personality.” Dr.

Gurland also expressed concern about the effects of

McMurtrey’s numerous motorcycle accidents, which had

caused head trauma. Dr. Gurland questioned the Pima County

11228 MCMURTREY v. RYAN
Prison’s decision to prescribe Thorazine and Atarax, concluding that the medications, while in some cases capable of providing effective treatment for seizures and anxiety, were

potentially harmful to McMurtrey’s damaged liver. Dr. Gurland stated that, because of McMurtrey’s mental health issues,

he did not believe that McMurtrey understood at the time of

the crime the difference between right and wrong or the significance of the Ranch House Bar incident. He described

McMurtrey’s mental state as fragile and was concerned that,

with the stress of the upcoming trial, McMurtrey’s mental

state would deteriorate further without proper medication. Dr.

Gurland recommended that McMurtrey be hospitalized as

soon as possible so that he could receive appropriate medication, have his seizure history evaluated, have an EEG and a

CAT scan because of the seizures, and receive tests to investigate the functioning of his liver. He concluded that a Rule 11

exam was warranted. 

Superior Court Judge William Druke, who handled such

motions, took the competency examination motion under

advisement and ordered Polis to arrange for McMurtrey to be

examined by the Court Clinic to determine if reasonable

grounds existed to hold a Rule 11 evaluation. As a result,

court psychologist Cynthia Ginnetti met with McMurtrey on

January 13, 1981. In a letter to the court, Dr. Ginnetti stated

that McMurtrey “demonstrate[d] a good understanding of the

charges against him and of the legal process generally.” However, Dr. Ginnetti expressed concern over McMurtrey’s “spotty” memory about the crime, noting that “this does impair his

ability to assist counsel, particularly if a defense of selfdefense is pursued.” Dr. Ginnetti recommended EEG testing

to check for temporal lobe damage. 

Polis hired psychiatrist Leonardo Garcia-Bunuel to meet

with McMurtrey in January 1981 and review his records.

McMurtrey told Dr. Garcia-Bunuel that he had “experienc[ed]

auditory and visual hallucinations since age fifteen.” When

asked about the incident at the Ranch House Bar, McMurtrey

MCMURTREY v. RYAN 11229
stated that he remembered men at the bar threatening to slice

the “one percent” tattoo off of his arm.5 McMurtrey recalled

that the men grabbed him and that McMurtrey had pulled a

gun on the men. He remembered seeing himself shoot the

gun, as though he were a bystander, unable to do anything. On

several occasions during the interview, McMurtrey rocked

back and forth in his chair. Dr. Garcia-Bunuel noted that such

behavior is a common side effect of certain drugs like Atarax

and Thorazine, and that he, like Dr. Gurland, questioned

whether McMurtrey should be receiving those medications. 

To determine if McMurtrey was faking some of his symptoms, Dr. Garcia-Bunuel led him into some “traps.” The doctor reported that McMurtrey did not fall victim to any of

them. In fact, Dr. Garcia-Bunuel stated that he felt “very

strongly” that McMurtrey “is not faking in any way, that he

is, and has been, honest throughout.” Dr. Garcia-Bunuel concurred in Dr. Gurland’s evaluation and recommended that

McMurtrey undergo a complete neurological evaluation,

including EEG testing, a brain scan, and a skull examination.

Based on these reports, Polis filed a motion requesting a

neurological examination, which Judge Druke granted. The

tests revealed no abnormalities. On February 4, 1981, neurologist Harvey Buchsbaum met with McMurtrey. In a letter to

the Pima Deputy County Attorney, Dr. Buchsbaum discounted any concerns of significant neurological damage,

concluding that the tests revealed no evidence of neurological

disease and that McMurtrey’s action in the bar “fits better

with a rage attack instead of a psychomotor seizure.” After

reviewing Dr. Buchsbaum’s report, Judge Druke decided that

there was no need to do anything further, and no testimony

5As the district court noted, the term “one percenter” is usually associated with membership in the Hell’s Angels motorcycle gang, and the name

is derived from a statement issued by the American Motorcycle Association that ninety-nine percent of motorcyclists are good people enjoying a

clean sport and that one percent are outlaw bikers. 

11230 MCMURTREY v. RYAN
was taken. At Polis’s urging, the court agreed to review the

reports offered by the defense, but on February 20, 1981,

Judge Druke stated that he was “unable to find reasonable

grounds to believe the defendant is incompetent to stand trial”

and summarily denied the Rule 11 motion and referred the

case back to Judge Arnold. 

On March 6, 1981, Dr. Gurland wrote to Polis to inform

him that McMurtrey had been moved to the psychiatric unit

of a local hospital because of “suicidal ideation and a psychotic breakdown.”

6

 Dr. Gurland stated that McMurtrey was

experiencing memory and anxiety problems and that, as a

result, McMurtrey was incompetent to stand trial. He further

noted that McMurtrey was able to understand and follow the

court proceedings, and would “not be incompetent in those

areas.” Dr. Gurland recommended that McMurtrey receive

Valium to alleviate his “high anxiety level.” The same month,

Dr. Gurland again examined McMurtrey. Dr. Gurland diagnosed McMurtrey as exhibiting mixed neuroses, depression,

and anxiety, and noted that stress was the major factor triggering McMurtrey’s mental health problems. 

On March 13, 1981, four months prior to trial, McMurtrey

was examined for an hour by Dr. John LaWall, the State’s primary psychological expert in this case. McMurtrey told Dr.

LaWall that he had suffered auditory and visual hallucinations

since the age of fifteen and that he had been hospitalized for

these hallucinations. McMurtrey also explained that he occasionally saw people and weapons that were not really there

and that since age fifteen he has experienced blackouts—

“periods in which he loses touch with his surroundings but

apparently does not lose motor control.” McMurtrey admitted

that he had used drugs in the past, including amphetamines

and LSD, but told Dr. LaWall that his current illicit drug use

was minimal. McMurtrey told Dr. LaWall about his motorcy6The record does not reveal whether Polis submitted this letter to the

trial court. 

MCMURTREY v. RYAN 11231
cling and his affiliation with the “one percenters.” McMurtrey

mentioned that he was a frequent visitor to the Ranch House

Bar and that, although he had a dim recollection of the events

of August 10, 1979, which Dr. LaWall termed “partial alleged

amnesia,” McMurtrey did remember drinking approximately

a fifth of whisky and possibly taking a barbiturate. Dr. LaWall

noted that McMurtrey was taking Dilantin,7 Elavil,8 and

Librium.9

Based on his one-hour interview with McMurtrey, and a

review of the reports discussed above, Dr. LaWall found it

“difficult to diagnose any mental disorder.” He concluded that

McMurtrey “was oriented to time, place and person,” that he

did not suffer from epilepsy or partial seizures, but that, in his

opinion, “[t]here are a number of elements in his history

which tend to suggest a variety of disorders” and that

McMurtrey might suffer from “atypical dissociative disorder.” He thought that at the time of the crimes McMurtrey

understood his actions and the difference between right and

wrong. Finally, Dr. LaWall stated that, in his opinion,

McMurtrey was competent to stand trial because he was capable of understanding the nature of the proceedings and

because he was able to assist in his own defense. 

7Dilantin is an anti-epileptic drug used to treat grand mal seizures. See

Dilantin, Physician’s Desk Reference website, available at http://

www.pdrhealth.com. The side effects of Dilantin may include decreased

coordination, involuntary eye movement, mental confusion, and slurred

speech. Id.

8Elavil, an antidepressant, was prescribed by Dr. Santiago, who treated

McMurtrey when he was hospitalized. Patients taking Elavil may experience drowsiness, dizziness, blurred vision, sedation, and confusion. See

Elavil, Physician’s Desk Reference website, available at

http://www.pdrhealth.com. 

9Librium is a sedative used to treat anxiety. See Physician’s Desk Reference 3299 (2008). It may interfere with mental alertness and cause drowsiness, confusion, and nausea. Id. 

11232 MCMURTREY v. RYAN
B. Evidence at Trial

The record shows that, during McMurtrey’s trial, which

began on July 1, 1981, and lasted for seven days, McMurtrey

was ill on at least three occasions. On the third day of trial,

attorney Polis complained to the court that McMurtrey’s medication was responsible for McMurtrey “getting ill constantly

in the courtroom.” Judge Arnold called for a recess on

account of the nausea. Polis also alerted the court to

McMurtrey’s nausea on each of the final two days of the trial.

At trial, Dr. LaWall and Dr. Gurland testified as to their

March examinations of McMurtrey. Dr. Gurland, who examined McMurtrey in November 1980 and again in March 1981,

testified that McMurtrey was treated with Thorazine. He called Thorazine “a major tranquilizer,” “used for more significant degrees of agitation or emotional upset.” Dr. Gurland

testified that he was uncertain how long McMurtrey had been

receiving Thorazine, but that he believed that McMurtrey had

been medicated with it by jail physicians “for some time.” Dr.

Gurland noted that in November 1980 McMurtrey was taking

approximately double the recommended dosage of Thorazine;

he stated that the average person “would be laid out for the

next seven or eight hours” if given such a dose. Dr. Gurland

also noted that McMurtrey had been prescribed Dilantin,

Elavil, Atarax, and Librium during his incarceration. Dr. Gurland testified that the amount of Librium prescribed to

McMurtrey “was five times the addictive dose.”

10

Dr. José Santiago, who treated McMurtrey during his oneweek hospitalization, testified about McMurtrey’s current

mental state to provide corroborative evidence in support of

McMurtrey’s defense that the shooting was a product of his

chronic insanity or mental illness. He diagnosed McMurtrey

10As for Dr. Gurland’s March 6, 1981, letter discussing McMurtrey’s

one-week hospitalization, it is unclear from the record whether Polis submitted this letter to the court. 

MCMURTREY v. RYAN 11233
as suffering from, among other conditions, a major depressive

disorder that impaired his ability to control his emotions. Dr.

Santiago explained his diagnosis as follows:

Well, what I mean is that because of the illness,

because of the difficulty with the emotions, the

patient is unable to interpret what he sees and what

happens around him in a logical, coherent fashion.

Now remember that I made that observation in connection with a thought disorder. Mr. McMurtrey

does not have a thought disorder, so he is able to, in

essence, process the cues around him. In the emotional disorder which is what Mr. McMurtrey has,

what he is unable to control is his emotions and his

emotions[,] in turn, impair gravely on his ability to

function when he is under that particular acute phase

of the illness. 

Dr. Santiago stated that fear and “stress will provoke a major

depressive disorder episode” and that McMurtrey’s mood disorder was evidence of mental illness. He further noted that

some people who suffer from a depressive disorder may not

know right from wrong. When pushed by the prosecutor to

express his opinion whether McMurtrey was sane on the night

of the incident, Dr. Santiago stated, “If you want me to

hypothesize, the fact that [McMurtrey] has a mental illness

would support the possibility that he might be insane at the

time of the offense.” Dr. Santiago described the medications

administered to McMurtrey while in jail, which included

Thorazine, an anti-psychotic drug, Dalmane, which he called

a “sedative hypnotic drug,”

11 and Chloral Hydrate, a sedative.

He also described the medications administered during

McMurtrey’s hospitalization, which included Thorazine and

Elavil, an antidepressant. 

11Dalmane is used as a hypnotic agent to treat insomnia. See Physician’s

Desk Reference 3285 (2008). It can interfere with mental alertness and

cause dizziness, drowsiness, nausea, nervousness, irritability, slurred

speech, restlessness, and hallucinations. Id.

11234 MCMURTREY v. RYAN
C. Evidence in Pre-Sentencing Report

Before sentencing, the state trial court’s probation department obtained information concerning McMurtrey’s incarceration at the county jail. A form12 completed by a nurse

indicated that McMurtrey was taking Phenobarbital, Dalmane,

and Ativan.13 The court also received various incident reports

from corrections officers. These incident reports indicated that

between January and July 1981, McMurtrey set fires, passed

out, threw food, fought with other inmates, and assaulted a

corrections officer. Jail personnel modified or reduced his

medications before McMurtrey was seen by a doctor.

McMurtrey also injured himself on three separate occasions.

On February 26, 1981, he was found in his cell with blood

dripping from his arms and a pool of blood at his feet. Shortly

thereafter, McMurtrey was hospitalized. On July 16, 1981,

three days after being convicted, McMurtrey smashed his

head against a window. Nine days later, on July 25, 1981, he

smashed his head against a door. 

The probation department also referred McMurtrey to psychiatric social worker Carolyn Ford, who examined

12This form is all that is available because McMurtrey’s jail medical

records and medical administration chart were apparently destroyed. The

jail progress notes described in Part II of the opinion were not presented

to the trial court until the 1994 evidentiary hearing. Accordingly, they are

not relevant to the consideration of whether a competency hearing should

have been conducted. See Williams v. Woodford, 384 F.3d 567, 604 (9th

Cir. 2004). 

13Ativan is used to treat short term anxiety disorders. See Ativan, Physician’s Desk Reference website, available at http://www.pdrhealth.com. It

may cause dizziness, memory problems, sedation, transient amnesia,

unsteadiness, and weakness, and it is not recommended if “full mental

alertness” is required. Id. The drug’s description warns that it is “especially important” to check with a doctor before combining Ativan with

other sedative-type medications, such as Valium. Id. McMurtrey was prescribed as much as twelve milligrams in one day, in excess of the two to

six milligram recommended dosage. An overdose of Ativan may result in

confusion, drowsiness, low blood pressure, and sluggishness. Id.

MCMURTREY v. RYAN 11235
McMurtrey on July 28, 1981. According to Ford’s evaluation,

McMurtrey spoke in an “extremely loud, rambling, tangential,

at times philosophical, and at times, crude manner,” and his

behavior was “highly agitated and impulsive,” interspersed

with periods during which he appeared to be sleepy. Ford was

not able to evaluate credibly McMurtrey because she found

that his behavior was “purposefully manipulative and cunning, designed to intimidate, harass, and in general keep people away from him.” 

Prior to sentencing, McMurtrey moved for a new trial. In

the motion, he argued that the change in his medication during trial prevented him from receiving a fair trial. Specifically, the motion stated:

As the evidence adduced at his trial demonstrates,

Mr. McMurtrey had severe mental health problems.

These problems were aggravated during times of

stress, and were treated by psychoactive drugs during the entire time of his incarceration and trial.

These drugs included Thorazine, Ativan, Valium,

Elavil, Dilantin as well as others. In the middle of

trial Mr. McMurtrey’s medication was changed and

his already unstable mental health further declined.

This additional instability, occasioned by the change

in medication, in turn adversely affected his demeanor at trial until, on the last day, he was essentially

on the verge of a nervous breakdown. This change

in demeanor, it is Mr. McMurtrey’s contention, operated to deny him a fair trial as Constitutionally guaranteed because the jury viewed a man in “a chemical

straight jacket.” 

The trial judge denied the motion in a two-page minute order.

11236 MCMURTREY v. RYAN
D. Evidence at Sentencing

On August 28, 1981, the day of sentencing, attorney Polis

drew the court’s attention to McMurtrey’s one-page patient

order sheet that listed the variety and quantity of drugs prescribed to McMurtrey before and during the trial. This patient

order sheet made clear that, during trial, McMurtrey was prescribed Valium,14 Ativan, Librium, and Dalmane.15 The following conversation took place between the court and

attorney Polis:

Judge: What import does the medical records

and change in medication have on the

defense’s position in this case? You

see, it puts me sort of at a disadvantage to have this handed to me the day

of sentencing. 

Polis: I understand that. Just makes the

record complete with respect to what

medication he received in the jail and

the changes in it. If the Court would

review that, you would see — 

Judge: I’m not a doctor. I really wouldn’t

know what it meant if I reviewed it. A

change in medication means nothing

without some sort of expert to testify

as to what effect, if any, it would have

14Valium is used to treat anxiety disorders. See Physician’s Desk Reference at 2765. Use of Valium may cause drowsiness, fatigue, confusion,

depression, blurred vision, and rage, and may interfere with mental alertness. Id.

15These four medications are classified as benzodiazepines, a family of

psychoactive compounds used to treat anti-anxiety disorders. See Stedman’s Medical Dictionary 198 (26th ed. 1995). Benzodiazepines are

highly addictive drugs that commonly interfere with memory, ability to

concentrate, and intellectual function. 

MCMURTREY v. RYAN 11237
on the defendant’s position. All I can

say [is] I observed Mr. McMurtrey all

during the course of the trial and the

only opinion I have is that he didn’t

appear to be under the influence of

any drugs to the extent that it would

deprive him of his ability to be aware

of what was going on. 

At the end of the sentencing hearing, the following exchange

took place: 

Judge: Mr. McMurtrey, I haven’t heard from

you in regard to the position you are

in. Do you have anything to say to the

Court before sentence is imposed? 

McMurtrey: Sir, I don’t know if I’m speaking to

the Court when I speak, but I would

like to speak to the Creator, the Creator of this court and the Holy Creator, would that be all right? 

Judge: I talk to Him all the time. So you go

right ahead. 

McMurtrey: (Kneeling.) Sir, I’m speaking to You

in a voice at this time because I have

others around me that need to know

my thoughts. I ask that You give them

the wisdom to make Your correct

decision and the rest of us the strength

to hold that wisdom. Amen. 

That is all I have sir. 

The court then denied McMurtrey’s motion for post-trial

relief. In its minute order, the court stated: “The Court feels

11238 MCMURTREY v. RYAN
that there is no evidence whatsoever that Mr. McMurtrey’s

medical treatment at the jail had any effect on his ability to

defend himself. The Court observed Mr. McMurtrey during

the trial; he appeared alert and in control of himself . . . .”

Judge Arnold then sentenced McMurtrey to death plus

twenty-one years. 

E. Analysis

We agree with the district court that the evidence before the

state trial court regarding McMurtrey’s behavior, medications,

and memory problems was sufficient to raise a reasonable

doubt as to McMurtrey’s ability to assist counsel, despite Dr.

LaWall’s testimony to the contrary. Moore v. United States,

464 F.2d 663, 666 (9th Cir. 1972) (holding that records showing defendant’s history of mental illness and instability raised

reasonable doubt even though psychiatric report before his

guilty plea found him competent); see also Torres v. Prunty,

223 F.3d 1103, 1110 (9th Cir. 2000): 

In the face of this evidence, and under the Pate standard for triggering a competency hearing, the modest

evidence of [the defendant’s] competence does not

fairly support the trial court’s conclusion that no

hearing was required. [A doctor’s] previous conclusion that [the defendant] was competent to stand trial

does not obviate the need for a hearing. Nor does the

evidence that [the defendant] was able to assist his

attorney at trial in minor ways. 

[2] The state trial court had before it a significant body of

evidence that McMurtrey received a wide variety of antipsychotic and anti-anxiety medications over the course of his

incarceration. By the time of sentencing, Judge Arnold had

been presented with evidence that McMurtrey was prescribed

Atarax, Ativan, Chloral Hydrate, Dalmane, Dilantin, Elavil,

Librium, Thorazine, and Valium. This evidence came in the

form of pre-trial reports from doctors, trial testimony, docuMCMURTREY v. RYAN 11239
ments in the pre-sentence report, and documents attached to

the motion for a new trial. The medications alone should have

raised concerns for Judge Arnold. See Moran v. Godinez, 972

F.2d 263, 265 (9th Cir. 1992), overruled on other grounds,

509 U.S. 389 (1993) (holding that the trial court’s failure to

inquire about the four psychiatric medications defendant was

taking, among other factors, raised reasonable doubt about

competence); Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir.

1997) (finding that state court’s failure to ask defendant

whether he had been taking his psychotropic medication

before accepting his guilty plea raised reasonable doubt about

defendant’s competence to plead guilty, and therefore competency hearing should have been held). When presented with

the evidence regarding McMurtrey’s medications at sentencing, however, Judge Arnold simply noted that he was not a

doctor and that, as such, he could not evaluate what the

effects of the medications might have been.16

[3] Other evidence presented at trial raised further doubts

about McMurtrey’s competence. The district court summarized some of this evidence as follows:

The [state trial court] learned during trial that

McMurtrey was prescribed a variety of anti-anxiety

medications, had been hospitalized for a suicide

attempt, and suffered from a major depressive disorder that impaired his ability to control emotions. The

court also observed McMurtrey become repeatedly

physically ill during trial and, prior to sentencing,

received documentation of McMurtrey’s increasingly volatile and aggressive behavior in jail. The

16The State notes that, with the exception of a one-page record, there is

no way to know all of the medications that were actually prescribed and

in what dosages they were administered to McMurtrey. Certainly, a more

complete record regarding the dosages administered and their effect on

McMurtrey would be enlightening. As the district court noted, however,

“due in part to the trial court’s refusal to hold a post-trial hearing on competency, a more complete record does not exist.” 

11240 MCMURTREY v. RYAN
court was aware of counsel’s concern that

McMurtrey was on the verge of a nervous breakdown and operating in a “chemical straight jacket,”

as well as medical records documenting Valium

injections during trial to treat “extreme agitation.”

Finally, the court observed McMurtrey at sentencing

as he knelt to address the “Creator of this court” and

requested a “correct decision” without providing any

coherent statement concerning himself, the crime or

sentence. 

We agree with the district court that this evidence raised a

reasonable doubt as to McMurtrey’s competence. The jail

incident reports presented to Judge Arnold in the presentence

report illustrating McMurtrey’s increasingly erratic and volatile behavior were striking, especially alongside evidence that

McMurtrey was prescribed substantial doses of powerful and

potentially incompatible medication. 

[4] We also agree with the district court that Dr. LaWall’s

pre-trial evaluation of McMurtrey is not dispositive evidence

that McMurtrey was competent at the time of trial. Dr. LaWall met with McMurtrey for one hour in March 1981. His

observations from a brief interview conducted four months

before trial cannot overcome a reasonable doubt concerning

defendant’s competence to stand trial. See Moore, 464 F.2d at

666 (“Once there is [evidence raising a reasonable doubt as to

the competency to stand trial] from any source, there is a

doubt that cannot be dispelled by resort to conflicting evidence.”). Further, as the Supreme Court noted in Drope, 420

U.S. at 181, “Even 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.” Judge Arnold’s responsibility to be alert for changing

conditions is especially strong because the court was on

notice from Dr. Gurland that the stress brought about by trial

might cause McMurtrey’s mental state to further deteriorate.

MCMURTREY v. RYAN 11241
The time lag between Dr. LaWall’s examination and trial is

also particularly important because McMurtrey does not

allege a longstanding mental disease, but instead argues that

medications prescribed by prison medical personnel temporarily undermined his competency. 

Finally, Dr. LaWall’s conclusions are weakened because

they did not reflect consideration of the effect that

McMurtrey’s medications would have on his competence to

stand trial. See Moran, 972 F.2d at 268 (noting that expert’s

report was “all the weaker as an indication of [the petitioner’s] competency to waive his constitutional rights because it

says nothing about the effects of any medication”). 

[5] In sum, Dr. LaWall’s testimony did not overcome the

other evidence in the record about McMurtrey’s competence.

McMurtrey’s due process rights were therefore violated. See

James v. Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992)

(noting that “the trial of an incompetent defendant is per se

prejudicial”). We therefore affirm the district court’s conclusion that because a bona fide doubt existed as to McMurtrey’s

competence to stand trial and be sentenced, a competency

hearing should have been conducted. 

II. The State Trial Court’s Failure to Hold a Timely

Competency Hearing Is Not Cured by the 1994

Evidentiary Hearing

The State relies on Judge Arnold’s finding, after the 1994

evidentiary hearing, that McMurtrey failed to prove that he

was not competent to stand trial. As noted earlier, the 1994

hearing was conducted after the federal district court concluded that Judge Arnold had erroneously precluded

McMurtrey’s ineffective assistance claim raised in his first

petition for PCR. At that hearing, McMurtrey argued (1) that

there had been a reasonable doubt as to his competency at

trial, and (2) that his counsel was ineffective for failing to

reassert the competency issue during trial. 

11242 MCMURTREY v. RYAN
A. Evidence Presented at the 1994 Hearing

At the 1994 evidentiary hearing, McMurtrey presented the

testimony of attorney Polis, attorney Sadacca, psychologist

Dr. Joseph Geffen, jail guard Jeff Rogers, newspaper reporters Ben McNitt and Deborah Wyermann, and substance abuse

expert Dr. Andrew Weil, as well as jail progress notes for the

trial days. The state presented testimony from prosecutor Jim

Himelic, detective Leo Duffner, Dr. LaWall, and psychologist

Dr. Alexander Don. 

1. Bertram Polis 

Polis, who met with McMurtrey dozens of times prior to

trial, testified that McMurtrey’s behavior was very inconsistent and that he was sometimes “uncommunicative.” One

month before trial, when Polis informed McMurtrey of the

State’s plea offer of twenty-one years for second degree murder, McMurtrey stated that he would plead guilty only to

“poaching out of season.” Polis stated that he did not believe

that McMurtrey thought clearly about the plea offer or considered it in a rational fashion. 

Polis testified that, as the trial approached, McMurtrey’s

mental state “deteriorated from the time of trial and continued

to deteriorate throughout the trial.” He testified that

McMurtrey’s demeanor fluctuated greatly during the trial, that

McMurtrey was often agitated, angry, uncommunicative, and

emotionally unstable, and that he had little memory of the

offense. Polis also testified that McMurtrey interfered with his

representation during trial, making verbal comments and

threats, writing illegible notes, whispering, and mumbling. “It

got to the point where I was more controlling Mr. McMurtrey

than I was having him assist me.” Polis saw McMurtrey

receive medication during recesses throughout the trial and

saw him get sick from them. 

Polis also met with McMurtrey after trial and sentencing

when McMurtrey had been moved to a new prison. Polis testiMCMURTREY v. RYAN 11243
fied that McMurtrey “was like a different person” who was

“mentally stable,” “calm,” and “exhibited some clarity of

thought that I had never seen before in him.” 

2. Henri Sadacca 

Sadacca testified that he met with McMurtrey often prior to

trial, during trial, and throughout sentencing. In Sadacca’s

view, McMurtrey’s conduct was very inconsistent. According

to him, as the trial approached, McMurtrey’s behavior became

more extreme, and he often appeared “very agitated,” “volatile,” or “heavily sedated.” Sadacca also stated that

McMurtrey often made strange and inappropriate comments.

Throughout the trial, Sadacca witnessed jail personnel—not

medical professionals—administer medication to McMurtrey

while in the courtroom. Sadacca testified that he believed that

it was the medication, particularly the differing varieties and

quantities, that contributed to McMurtrey’s “radical difference” in and “roller-coaster” behavior and his “slurred”

speech. Sadacca also testified that McMurtrey’s state prevented him from assisting in his own defense and that he

believed that McMurtrey’s medications interfered with

McMurtrey’s ability to communicate with counsel. 

3. Dr. Joseph Geffen 

Dr. Joseph Geffen, who examined McMurtrey in 1992, was

asked to review McMurtrey’s jail records from early 1981

through August 1981. Reviewing all of the data, including the

reports by various experts and doctors, relevant court records,

and McMurtrey’s statements of former drug and alcohol

abuse, Dr. Geffen found that the evidence suggested that

McMurtrey was not competent at the time of trial. “I think

that there’s a lot of supportive data that I reviewed . . . that

would indicate that he may not have been competent, that he

probably wasn’t at the time, at the time of trial.” When asked

specifically whether there was “a reasonable question as to

whether or not Mr. McMurtrey was or was not competent at

11244 MCMURTREY v. RYAN
the time of his trial,” Dr. Geffen said, “Yes, I believe that

there was.” Without having examined McMurtrey in 1981,

Dr. Geffen acknowledged that he could not state conclusively

whether McMurtrey was, in fact, competent during trial. He

also stated that he would have thought there was a reasonable

doubt even based on the materials available at the time of

trial, without the benefit of the subsequent information. 

Dr. Geffen also described the difference between

McMurtrey as described in 1981 and when he saw him in

1992. Dr. Geffen found the difference to be “striking.”

I would say yes, that there was a striking difference

between my impressions and the picture that I had

built up prior to my seeing Mr. McMurtrey based on

the — not only on the reports of all the doctors who

examined him, but also including the mental health

records of the jail, and some of the minute entries

about his behavior, and then what I saw in 1992. 

The difference I think would tend to support the

view of his having been quite dysfunctional and

quite distant, his behavior having been quite problematic, psychologically, at the time, because when

I saw him several years later, he had been free of

drugs, he had not had any medication, any psychotropic medications, he had not had any street

drugs; his mind was clear. 

Dr. Geffen went on to state that “McMurtrey was ashamed —

that he felt ashamed of himself that he had actually avoided

dealing with his trial and that he had engaged in taking so

many drugs and substances which resulted in his not being

able to be aware of what was going on and his not being able

to assist better.” 

4. Jeff Rogers 

Jeff Rogers was employed by the Pima County Sheriff’s

Department as a corrections officer from November 1979

MCMURTREY v. RYAN 11245
through August 1981. Rogers readily recalled McMurtrey

because they interacted every day. Rogers testified that

McMurtrey’s behavior was erratic and that he often moved

around in what the guards characterized as a “Thorazine shuffle.” Rogers explained that this was not a medical diagnosis,

but a colloquial term referring to McMurtrey’s “shuffling

walk,” “glazed eyes,” and being “not very alert.” As time

passed, McMurtrey’s “stupor state” became more common,

and by summer (and the trial), McMurtrey was in a stupor two

thirds of the time that Rogers saw him. Rogers believed that

McMurtrey received medication about three times a day

because Rogers often accompanied the jail nurse as she dispensed medicine to each inmate. 

5. Ben McNitt 

Ben McNitt, a former Tucson Citizen reporter, covered

parts of McMurtrey’s trial for the newspaper. McNitt testified

that he spoke to McMurtrey on the phone and that although

he tried to probe McMurtrey for his feelings about the incident and the victims, McMurtrey “seemed emotionally disengaged” and unable to offer “a normal emotional response on

any level.” McNitt had spoken to hundreds of criminal defendants during his ten years as a reporter in Arizona, but he

found McMurtrey’s level of “detachment” unusual. The only

time that McNitt saw McMurtrey speak in person was at the

sentencing hearing. McNitt explained his impression of

McMurtrey’s behavior in the courtroom as follows: “I have a

very clear recollection that my first impression was that he

appeared glazed. His eyes appeared glazed. Almost like someone who had just, you know, you just wake up and are still

sort of partly asleep.” 

6. Deborah Wyermann 

Deborah Wyermann, a reporter for the Arizona Daily Star

from 1978 to 1986, covered McMurtrey’s trial for the newspaper. She could not remember much of the trial but testified

11246 MCMURTREY v. RYAN
that the sentencing was the “most bizarre” of the more than

150 sentencing hearings she had seen. Wyermann stated that

she had a good view of McMurtrey and that she could see and

hear him very clearly. 

Well, Mr. McMurtrey appeared to me to be — to not

exactly know where he was, and in addition, . . . he

was erratic in both his body movements and his

speech. His eyes were unfocused and glazed, and his

voice was loud. Sometimes loud, sometimes soft,

and then, to my way of thinking, a lot of what he

said was fairly incoherent. 

Wyermann also recalled the “spectacle” in which McMurtrey

knelt and asked to speak to the Creator. 

7. Dr. Andrew Weil 

Dr. Andrew Weil, an expert in substance abuse and addiction, reviewed McMurtrey’s medical records for June 29 to

July 13, 1981. Dr. Weil noted that a number of the medications prescribed to McMurtrey — Valium, Dalmane, Librium,

and Ativan — are “benzodiazepines within a subdivision of

drugs called sedative hypnotic drugs.” Dr. Weil testified that

these drugs are used either as nighttime sedatives or daytime

anti-anxiety medications. He noted that these drugs are highly

addictive and that they commonly “interfere with memory,

ability to concentrate, and with intellectual function.” Dr.

Weil admitted that the effects varied from patient to patient

but stated that “it’s constant enough to be a major problem.”

Dr. Weil testified that these drugs are problematic because

they are among the most commonly prescribed medications

and because of the “percentage of people who get them who

suffer mental problems as a result of taking them.” Dr. Weil

also stated that combining the drugs, in the manner prescribed

to McMurtrey, is an additional danger. 

MCMURTREY v. RYAN 11247
8. Jail Progress Notes 

The jail’s progress notes reflected McMurtrey’s erratic

behavior as trial approached. In April 1981, he experienced

balance problems and fell several times in his cell and once

in the courtroom, which one of his doctors suggested was

caused by overmedication. In June 1981, McMurtrey complained that he could not sleep because of his anxiety about

the trial, and that he was so upset that he wanted to put “[his]

thumb in someone’s eye.” The notes from July 2, 1981, the

second day of trial, reflect that McMurtrey was very agitated,

“tearful one moment then violent the next.” On July 7, 1981,

a nurse noted that the trial judge “wished to have the doctor

in jail to review the chart in reference to [McMurtrey’s] complaints of stomach pain, constipation and nervous condition.”

McMurtrey was administered 10-milligram Valium injections

on July 10 and 11 and was again prescribed Ativan and Dalmane by July 13 as well as Valium. Finally, on July 16,

McMurtrey intentionally crashed his head through the

window-portion of a jail door. 

9. Jim Himelic 

Jim Himelic prosecuted the case. He stated that he did not

observe McMurtrey throughout the trial but instead looked at

him “every once in a while like you do any trial.” Himelic

stated that he could not recall “seeing anything out of the

ordinary during the trial on [McMurtrey’s] part.” He testified

that he never saw a deputy give McMurtrey medication and

that he did not recall seeing McMurtrey drowsy or asleep at

the counsel table. When asked if he remembered McMurtrey

saying anything during closing arguments, Himelic stated, “I

don’t remember. On that one I’m not saying he didn’t. I just

don’t remember.” 

10. Lt. Leo Duffner 

Lt. Leo Duffner of the Pima County Sheriff’s Department

served as Himelic’s lead detective during the trial. Lt. Duffner

11248 MCMURTREY v. RYAN
recalled that McMurtrey put his head down on the table when

McMurtrey’s father testified. He also stated that on several

occasions he saw McMurtrey write notes to his attorneys. Lt.

Duffner testified that he did not see McMurtrey receive any

medication in the courtroom. 

11. Dr. John LaWall 

Dr. LaWall was the only expert to testify at the 1994 hearing who had examined McMurtrey prior to trial. At the hearing, Dr. LaWall reiterated his earlier opinion that McMurtrey

had been competent to stand trial. He noted that the surviving

medical records did not indicate whether most of the medications prescribed were actually taken by McMurtrey. 

Dr. LaWall stated that high doses of the drugs prescribed

to McMurtrey could “produce cognitive impairment, memory

impairment, poor concentration, and so on.” He stated that the

medications could have a “less predictable” effect on a volatile person. Dr. LaWall also noted that several of the doses

prescribed in the jail medical records were “unusual” and that

Elavil and Librium combined “would produce greater sedation than either one taken alone.” In his view, “[i]t would be

inappropriate . . . for a person to be taking more than one of

these particular drugs at the same time,” and that prescribing

Valium, Dalmane, and Ativan simultaneously was not “rational pharmacology.” 

Like the other experts who testified, Dr. LaWall reviewed

police reports, transcripts, and medical records to assess

McMurtrey’s competency at the time of trial. Dr. LaWall

stated that he relied on information provided by the police and

on testimony by McMurtrey only if it did not tend to be exculpatory and discredited statements made by McMurtrey’s

counsel about McMurtrey’s appearance and ability to assist

with his defense: “You know, I don’t care what his counsel

says. His counsel can say anything.” Finally, Dr. LaWall

stated that it would have been “easier” to determine

MCMURTREY v. RYAN 11249
McMurtrey’s competency at trial if he had examined

McMurtrey closer to the date of trial. He conceded that the

drugs prescribed to McMurtrey could have rendered him mentally incompetent, even if McMurtrey was not mentally ill,

but that after March, Dr. LaWall did not examine him again

until after the trial in August, “and there was no way for me

to know what exactly he was taking at that time.” 

12. Dr. Alexander Don 

Dr. Alexander Don testified that a “competency determination or incompetency determination is a here-and-now event.”

He went on to explain that it is “virtually impossible to make

any intelligent assessment of someone’s competency after . . .

such a long period of time has elapsed.” Dr. Don did note that

if medications had been administered to McMurtrey, they

may have aided his competency by reducing anxiety and agitation. 

B. Analysis

After the 1994 hearing, Judge Arnold concluded that “during all phases of trial and sentencing procedures in this case

[ ] Mr. McMurtrey was competent.” As we explain below, we

affirm the district court’s finding that, given the passage of

time, the lack of medical records, and the absence of a doctor

who assessed McMurtrey at the time of trial, a sufficiently

meaningful assessment of McMurtrey’s competency at trial

was not possible in 1994 to cure the failure to make such an

assessment at the time of trial. 

[6] In Moran, 57 F.3d at 696, this court described the

framework with which we evaluate retrospective competency

hearings: 

When a state court wrongfully fails to hold a competency hearing, “it often may be impossible to repair

the damage retrospectively.” Evans v. Raines, 800

11250 MCMURTREY v. RYAN
F.2d 884, 888 (9th Cir. 1986). However, although

retrospective competency hearings are disfavored,

see Drope, [420 U.S. at 183]; Blazak v. Ricketts, 1

F.3d 891, 894 n.3 (9th Cir. 1993) . . . , they are permissible whenever a court can conduct a meaningful

hearing to evaluate retrospectively the competency

of the defendant. See Evans, 800 F.2d at 888; [de

Kaplany, 540 F.2d at 986]. While the passage of

time is significant in determining whether such a

hearing can be held, Pate, 383 U.S. at 387, medical

reports contemporaneous to the time of the initial

hearing greatly increase the chance for an accurate

retrospective evaluation of a defendant’s competence. See Sieling v. Eyman, 478 F.2d 211, 215-16

(9th Cir. 1973). See also Ray v. Bowen, 843 F.2d

998, 1006 (7th Cir. 1988).

Under Moran, the two major factors we consider are the passage of time and the availability of medical reports contemporaneous to the time of the initial hearing. Both here weigh in

McMurtrey’s favor. We also note that the Tenth Circuit set

out a helpful framework. See United States v. Collins, 430

F.3d 1260, 1267 (10th Cir. 2005). 

Pate itself illustrated an example of a retrospective competency determination that was inadequate. There, the Supreme

Court highlighted several difficulties in conducting a retrospective competency hearing. This court summarized these

problems in noting that the Court in Pate 

reasoned that the inability of the jury to observe the

demeanor of the accused, the fact that expert testimony would have had to have been based solely on

the printed record, and the six-year lapse between

the time of trial and the proposed post-conviction

hearing combined to compromise such a hearing

beyond redemption. 

MCMURTREY v. RYAN 11251
de Kaplany, 540 F.2d at 986 n.11. The Supreme Court and

this circuit have also found retrospective competency hearings

lacking or impossible on other occasions. See, e.g., Drope,

420 U.S. at 183; Dusky v. United States, 362 U.S. 402, 403

(1960); Tillery v. Eyman, 492 F.2d 1056, 1059 (9th Cir.

1974); Moore, 464 F.2d 666-67. 

[7] In this case, the evidentiary hearing occurred thirteen

years after McMurtrey’s trial. When the case first returned to

the trial court, the trial judge refused to hold a hearing, stating:

The Court further finds that if the Federal Courts

want to intervene in this matter, they can proceed

with the evidentiary hearing. I already ruled in 1988

six years ago on the matter . . . this Court saw

[McMurtrey], the jury saw him all the time throughout the case. But he wasn’t insane, he wasn’t under

the influence of drugs during the trial. The record is

clear. 

[8] Judge Arnold later changed his mind and scheduled an

evidentiary hearing. The absence of relevant and potentially

dispositive evidence, however, was apparent. Both parties

conceded that McMurtrey’s medical records were incomplete

and that there was no evidence to show which of the prescribed medications were actually administered. Further, no

mental health expert examined McMurtrey immediately prior

to the trial or during the trial, and so there are no contemporaneous medical opinions regarding McMurtrey’s competency.

Even Judge Arnold conceded that “of course this case is so

old, I don’t remember a lot of things.” 

[9] We therefore conclude that because of the thirteen-year

delay, the lack of contemporaneous medical opinions, and the

lack of medical records, the state trial court could not in 1994

meaningfully determine whether McMurtrey had been competent at trial in 1981. Consequently, we find that the 1994 evi11252 MCMURTREY v. RYAN
dentiary hearing did not cure the state trial court’s failure to

hold a timely competency hearing. 

CONCLUSION

We hold that McMurtrey’s memory problems, his erratic

behavior, and the variety and quantity of medications that he

was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as

to McMurtrey’s mental competence to stand trial. The state

trial court’s failure to conduct a competency hearing at that

time violated McMurtrey’s due process rights. The retrospective competency hearing held thirteen years after trial was

insufficient to cure this due process violation. Accordingly,

we AFFIRM the district court’s decision to grant

McMurtrey’s habeas petition on this ground. Because this

issue is dispositive, we need not address the remaining issues

on appeal or on cross-appeal. 

AFFIRMED.

MCMURTREY v. RYAN 11253