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April 8, 1966

In the Matter of the Application for a Writ of Habeas Corpus of Don Anthony WHITE, Petitioner,
B. J. RHAY, as Superintendent of Washington State Penitentiary at Walla Walla, Washington, Respondent

The opinion of the court was delivered by: TAYLOR

 FRED M. TAYLOR, District Judge.

 Petitioner, Don Anthony White, has applied to this court for a Writ of Habeas Corpus as a result of his conviction on two counts of murder in the state courts of the State of Washington. Hearing on said petition was ordered by another Judge, who subsequently became incapacitated, and the undersigned was assigned to hear the matter. Pursuant to a stipulation of the parties a hearing was held on the petition in Seattle, Washington, from February 7th through February 9, 1966, at which time oral and documentary evidence was introduced on behalf of petitioner and respondent.

 This court has jurisdiction to entertain the application under 28 U.S.C.A. § 2241. The applicant has unsuccessfully exhausted all available state court remedies as required by 28 U.S.C.A. § 2254

 On January 7, 1960, the State of Washington, by way of an Information charged petitioner with having committed two homicides, the first count charged petitioner with first degree murder of Alice Jumper on December 24, 1959, and the second count with second degree murder of Willie Dixson on that same day. On January 8, 1960, petitioner was arraigned before the Superior Court of King County at Seattle, Washington, at which time the court appointed counsel to represent him. Petitioner entered a general plea of not guilty to each count and subsequently, on January 22, 1960, petitioner, by and through his counsel, entered a special written plea alleging "that he was mentally irresponsible at the time of the commission of the crimes charged herein, and that such mental irresponsibility still continues." A jury trial was had on both counts in said Superior Court for King County from May 16 through May 27, 1960, and on the latter date, the jury returned a verdict of guilty on both counts recommending the death penalty on count one. Petitioner was thereafter sentenced to death on count one and to life imprisonment on count two. He unsuccessfully appealed to the Supreme Court of the State of Washington and his conviction was affirmed. State v. White, 60 Wash.2d 551, 374 P.2d 942. Subsequently, petitioner applied to the United States Supreme Court for a Writ of Certiorari and said petition was denied. White v. Washington, 375 U.S. 883, 84 S. Ct. 154, 11 L. Ed. 2d 113. He then petitioned the Washington Supreme Court for a Writ of Habeas Corpus and this petition was denied. White v. Rhay, 64 Wash.2d 15, 390 P.2d 535. The application for a Writ of Habeas Corpus was then filed in this court. After a hearing on a motion to dismiss the petition, the Judge then assigned to this case ordered a stay of further proceedings in this court to enable petitioner to make another application for a Writ of Habeas Corpus to the Supreme Court of the State of Washington. A second application was made to said court and denied. White v. Rhay, 65 Wash.2d 711, 399 P.2d 522.

 There is little or no conflict in the evidence concerning the arrest, custody and trial of the petitioner. He was arrested by a Seattle police officer on December 26, 1959, at approximately 11:00 P.M., for a crime unrelated to those with which he was subsequently charged in the Information. On December 28, 1959, at approximately 1:15 P.M. petitioner was placed in a police line-up with other persons having similar physical characteristics, at which time and place he was observed and identified by several witnesses. The following day he was again placed in a line-up and identified as the person who had pawned some of the dead woman's personal property. At approximately 3:30 P.M. following the first lineup, petitioner was interrogated by police officers. At this time a police officer prepared a written statement or confession in regard to the Dixson homicide which was signed by the petitioner. Later that same day petitioner was again interrogated by the police officer who prepared a written statement or confession regarding the Jumper homicide which was signed by the petitioner. A third statement was taken on January 6, 1960, in regard to petitioner's use of drugs and alcohol. All of the interrogations of petitioner by the police officer were secretly recorded by a concealed tape recorder in the interrogation room. The written statements or confessions signed by the petitioner in regard to the two homicides and the tape recordings so taken at the time the statements were prepared and signed were all admitted as a part of the State's evidence at the trial.

 In the petition here there are twenty-one claims of unlawful conviction and sentence, many of which are overlapping. The court does not consider it necessary to separately deal with each of said claims. These claims have to do with the selection of the jury; how the death penalty in first degree murder cases is to be applied; the validity and application of the so-called "McNaughton Rule"; arrest procedures; and, the giving and failure to give certain instructions. This court has fully considered the record of the trial, pleadings and papers filed subsequent thereto, the decisions of the Supreme Court of the State of Washington on the various questions presented to it and the arguments and briefs of counsel presented in this matter. Except as hereinafter stated, this court is in agreement with the decisions of the Supreme Court of the State of Washington with respect to the questions presented in that court and here in regard to violations of the petitioner's constitutional rights.

 It must be admitted that the conviction of an accused person while he is legally incompetent would violate due process and that state procedures must be adequate to protect this right. Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815, decided March 7, 1966.

 In this proceeding it is claimed that petitioner could not effectively assist in his defense at the trial, control his demeanor and attitude or be of assistance to counsel because of his mental condition. After reviewing the record of the trial and the evidence introduced at the hearing before this court and prior to the decision of the United States Supreme Court in Pate v. Robinson, supra, this court was of the opinion that this claim of the petitioner was without merit for the same reasons expressed by the State Supreme Court. However, since the Pate decision, this court has been persuaded to come to a different conclusion. The reason for this court's present opinion is based on the record as a whole. It must be noted and emphasized that the special written plea entered on behalf of petitioner prior to trial specifically alleged that he was then mentally irresponsible, a terminology which this court must construe to mean mentally incompetent. It is clear from the evidence at the trial and before this court that the petitioner came from a very dismal background of home environment and that he had been in a disturbed mental state from a relatively early age up until and during the trial. Expert psychiatric testimony revealed that he was in a disturbed state of mind at the time of the trial and, in addition, it was brought to the trial court's attention during the trial that petitioner's physical and mental condition were of considerable concern to his counsel. At the hearing before this court, the trial judge was called as a witness and freely admitted that he was concerned about the petitioner's attitude and awareness during the trial but testified that in his opinion petitioner did understand the nature of the proceedings and was capable of assisting his counsel in his defense. In the closing argument at the trial, counsel for petitioner emphasized the fact that petitioner was not only "sick" at the time of the commission of the crimes but he was equally so at that time. One of petitioner's counsel testified at the hearing before this court that he and his associate counsel were not actually aware of the degree of the petitioner's lack of competency at the time of the trial, but since that time, as a result of interviews and more psychiatric evaluation, it became clear that he was incompetent to stand trial. Expert testimony at the hearing indicates that there might be a real doubt as to petitioner's ability to aid his counsel in his defense at the time of trial. In this regard considerable weight should be given to a letter written by the trial judge to the Governor of the State of Washington (Petitioner's Exhibit No. 2) in which the Judge compares and contrasts the behavior and demeanor demonstrated by the petitioner at the time of the trial and at a later time. In this letter, the Judge stated:

"If Don Anthony White had appeared before the jury at the time of his trial in 1960 in the same manner, and with the same appearance of mental and emotional stability, and manifesting a genuine concern for the welfare of others, I cannot imagine that the jury would have prescribed the death penalty."
"We believe that the evidence introduced on Robinson's behalf entitled him to a hearing on this issue. (competency) The court's failure to make such inquiry thus deprived Robinson of his constitutional right to a fair trial. * * * The Supreme Court of Illinois held that the evidence here was not sufficient to require a hearing in light of the mental alertness and understanding displayed in Robinson's 'colloguies' with the trial judge. But this reasoning offers no justification for ignoring the uncontradicted testimony of Robinson's history of pronounced irrational behavior. While Robinson's demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue. * * *"

 This court is of the opinion that since the factual circumstances here are very similar to those in the Pate case, the principles adhered to there are applicable here. The court is not unmindful of the fact that this case, like Pate, has been long in the procedural process, but this fact does not preclude petitioner from having his constitutional rights. It is most difficult, if not impossible, to have a separate competency hearing at this late date in an attempt to determine petitioner's competency at and during the original trial. Having concluded that White's constitutional rights were abridged by his failure to receive an adequate hearing on his competency to stand trial, this court must direct that a Writ of Habeas Corpus issue and White ...

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