The opinion of the court was delivered by: Shadur, District Judge.
Petitioner Clarence Rivers ("Rivers") was convicted of murder
January 26, 1973 in the Circuit Court of Cook County. After
exhausting all available state remedies Rivers brought what is
now his Amended Petition for a Writ of Habeas Corpus (the
"Petition")*fn1 alleging that he had been incompetent to stand
trial. Respondents have moved for summary judgment as to all four
counts of the Petition, and Rivers has filed a cross-motion for
summary judgment as to Counts I, III and IV. For the reasons
stated in this memorandum opinion and order Rivers' motion is
granted as to Count I,*fn2 respondents' motion is denied and the
writ of habeas corpus is issued.
Rivers was indicted on charges of first degree murder March 20,
1972. Shortly thereafter the trial court ordered a psychiatric
examination to determine Rivers' mental fitness to stand trial.
On July 20, 1972 Staff Psychiatrist for the Psychiatric Institute
of the Circuit Court of Cook County Dr. Robert H. Reifman
reported to the court that Rivers was competent for that purpose.
Rivers' trial began in December 1972 and culminated in his
conviction January 26, 1973.
Almost immediately after the trial Rivers' trial attorney
received several indications that caused him to doubt Rivers'
competency. Accordingly the attorney filed with the trial court
"Suggestions of Doubt of Competency of Accused," bringing to the
court's attention a number of items of evidence to that effect.
That led the trial court to order another examination by Dr.
Reifman. On March 30, 1973 Dr. Reifman reported to the court that
Rivers was not then competent to be sentenced (without stating
the underlying basis for that conclusion).
Again Dr. Reifman did not report the bases for his conclusions or
the reasons for his diametrically opposed opinions as of two
dates so close together. Based on Dr. Reifman's report the trial
judge again refused to grant a hearing, determined that Rivers
was not fit to be sentenced and remanded him to the Department of
On June 18, 1973 Rivers was examined by Dr. Leonard Horecker,
a staff psychiatrist at the Illinois Security Hospital. Dr.
Horecker reported to the court that Rivers was then mentally
unfit for sentencing. On January 30, 1974 Dr. Reifman again
examined Rivers and reported to the court that he was now
mentally fit to be sentenced.
On April 9, 1974 the trial court held a hearing on Rivers'
mental competency for the first time, limited however to his
competency then to be sentenced — not competency at the time of
trial. Dr. Reifman testified, based on his fourth examination of
Rivers, that he was then mentally fit for sentencing. No
cross-examination was permitted by the trial court as to Rivers'
competency and ability to cooperate with counsel at trial. Based
on the Reifman report and testimony the trial court found Rivers
mentally competent to be sentenced. It rejected a motion for a
full hearing and an independent examination by another
psychiatrist, imposing a 30- to 90-year sentence.
Rivers contends in the Petition that the trial court denied him
due process of law by refusing to hold a post-trial hearing to
determine whether he had been mentally fit to stand trial.
Essentially Rivers' counsel argue that the matters brought to the
judge's attention, especially when corroborated by the
psychiatric finding that he was not fit to stand sentencing so
soon after trial, raised enough doubt as to his earlier
competency so that the trial court should have held a hearing.
Section 5-2-1 of the Unified Code of Corrections (Ill.Rev.Stat.
ch. 38, ¶ 1005-2-1) provides:
Under that provision a trial judge has a duty to conduct a
fitness hearing only when facts brought to his attention raise a
bona fide doubt regarding a defendant's fitness.
Certainly the trial judge had no reason to doubt Rivers'
competency before commencement of trial. Rivers had been found
competent by a psychiatrist about five months earlier, and no
evidence was presented to the court before trial to indicate that
there had been any change.
Accordingly the statute was not literally applicable, and
Rivers' counsel are right: Due process becomes an issue of
whether evidence presented to the judge after trial was
sufficient to raise the required bona fide doubt. Psychiatric
testimony is needless to say not the sole illuminator of a
defendant's fitness. In Drope v. Missouri, 420 U.S. 162, 180, 95
S.Ct. 896, 908, 43 L.Ed.2d 103 (1975), the Supreme Court listed
three factors that should be considered in determining whether
further inquiry is required:
(1) evidence of a defendant's irrational behavior;
(2) his demeanor at trial; and
(3) any prior medical opinion on competence,
but stated "that even one of these factors standing alone may, in
some circumstances, be sufficient."
As to the first factor, the trial judge was presented in
defense counsel's Suggestions of Doubt with evidence of
irrational behavior by Rivers starting almost from the
announcement of the judgment. That evidence, including several
almost incomprehensible letters, indicated that Rivers did not
recognize that he had been found guilty. Even though there was no
evidence of irrational behavior either before or during trial,
the showing of Rivers' behavior immediately after trial was
concededly such as to cause the trial judge to doubt Rivers'
competence to be sentenced.
As for the second factor, the court was unable to make any
meaningful observations of Rivers' demeanor. As the trial court
itself stated (Tr. 753-54):
[S]ince I have had no occasion to talk to Mr. Rivers,
nor has he taken the stand in his own behalf, so I
have not had the opportunity to observe his manner
while participating in any conversation or in any
conduct before the court other than to be present
throughout the course of the trial.
Thus the second factor is really neutral in this case. If an
individual's mental problems typically exhibit themselves in
violent outbursts or similar manifestations, the non-observation
of any such symptoms may be probative. But as indicated later in
this opinion, such was not the nature of Rivers' conduct when he
was concededly incompetent. No inference may appropriately be
drawn then from the trial court's failure to observe Rivers'
manner or conduct.
It was clearly the third factor, in the form of opinions by Dr.
Reifman, that persuaded the trial judge not to hold a hearing to
determine Rivers' competency at trial. But those opinions simply
will not withstand analysis for that purpose:
Dr. Reifman's July 1972 psychiatric examination was of little
value in determining Rivers' competency once contrary indications
became known. It took place some five months before trial. Dr.
Reifman confirms that Rivers' condition is a volatile one that
can change in a very short time — and indeed did according to
him. Consequently Rivers' competence months before trial is not
substantially probative (really an understatement) of his
condition at trial time.
Thus the trial judge was presented with a defendant who was
admittedly incompetent almost immediately after trial and who had
not been examined by a psychiatrist within a close proximity of
the trial. Such evidence clearly raises at the very least a bona
fide doubt as to Rivers' competence during trial. Only one piece
of evidence was on the other side of the scales: Dr. Reifman's
April 19, 1973 letter stating — without any indication of its
underpinning — that although Rivers was not fit for sentencing he
was sufficiently competent to have stood trial.
That report was of limited value at best. Dr. Reifman stated
only his conclusion and failed to discuss the basis for his
determination. Such conclusory reports by psychiatrist experts
are generally not favored by courts. See, Bruce v. Estelle,
483 F.2d 1031, 1035 n. 7 (5th Cir. 1973); Green v. United States,
389 F.2d 949, 955 (D.C.Cir. 1967);
Blocker v. United States, 288 F.2d 853, 863 (D.C.Cir. 1961).
Moreover, a conclusory report was particularly inappropriate in
Rivers' situation. Dr. Reifman's own later testimony demonstrates
that Rivers' condition was extremely volatile and could
potentially change at any time (Tr. 834-35 of the April 9, 1974
hearing on Rivers' competency to be sentenced):
Q. And, Doctor, what was the nature of that mental
disease or defect that the defendant was
suffering from at that time?
A. I made a diagnosis of schizophrenic reaction.
Q. Now, Doctor, will you tell the Court briefly what
you mean by schizophrenic reaction?
A. Well, a schizophrenic reaction essentially has
three components, I found Mr. Rivers —
schizophrenic reaction, rather, indicates that a
person is unable to appreciate reality. It may
indicate that a person's feelings are not
appropriate to reality or it may manifest itself
in bizarre behavior out of context with reality.
Q. Well, Doctor, in your experience, applying your
education, is the onset of a schizophrenic
reaction in a patient something that suddenly
occurs or something that occurs over a long period
A. The symptoms of schizophrenia can appear at any
time in a person's lifetime.
Q. And when you say they can appear at any time, that
means that various times they may be there, those
symptoms, and at other times they may not be?
A. No, that is one possible interpretation, the other
possible interpretation is that they may be
present in a dormant state and make their
appearance after a particularly stressful time for
the first time, at any time.
Q. And isn't it true, Doctor, that they may make
their appearance several times at various times?
A. That is true in some cases.
Competency hearings are intended to permit that issue, like all
other contested issues, to be subjected to the adversary process.
Except for the report of Dr. Reifman, the evidence available to
the trial judge raised a serious question as to Rivers'
competency during the trial. Dr. Reifman's statement, without any
explanation or discussion of the underlying factors, was simply
not enough to quash all doubt. It is possible that Dr. Reifman's
conclusion would have survived the crucible of cross-examination
— but it might not.*fn4 Psychiatry is far from an exact science and
Rivers' condition was obviously a most complex one. Other
psychiatric testimony could have cast further light on the
problem. All these things, capable of adequate development only
in the adversary context, show graphically why the Constitution
requires a hearing if there exists a bona fide doubt as to a
Under other circumstances no hearing might have been required
— for example, had Dr. Reifman examined Rivers shortly before
commencement of trial and found him fit, and had his subsequent
examination explained the probable time and cause of the onset of
Rivers' later incompetency. But those are not the facts. This
Court must find that Rivers' right to due process was abridged
when the trial court failed to hold a hearing to determine
whether he was competent to stand trial. See, People v. Turner,
88 Ill.App.3d 793, 44 Ill.Dec. 59, 410 N.E.2d 1151 (1st Dist.
Two alternatives present themselves: the granting of a hearing
determine Rivers' competency as of his original trial date or the
granting of a new trial on the murder charge. There is
respectable authority for the first of these. Pate v. Smith,
637 F.2d 1068, 1072-73 (6th Cir. 1981). But in this case the lapse of
some eight and one-half years, coupled with the admitted
transitoriness of Rivers' type of mental unfitness, makes the
prospect of an accurate reconstruction as of December 1972
remote. This Court therefore exercises its discretion in the
manner authorized by the Supreme Court in Pate, 383 U.S. at 387,
86 S.Ct. at 843, under almost identically difficult
It has been pressed upon us that it would be
sufficient for the state court to hold a limited
hearing as to Robinson's mental competence at the
time he was tried in 1959. If he were found
competent, the judgment against him would stand. But
we have previously emphasized the difficulty of
retrospectively determining an accused's competence
to stand trial. Dusky v. United States, 362 U.S. 402
[80 S.Ct. 788, 4 L.Ed.2d 824] (1960). The jury would
not be able to observe the subject of their inquiry,
and expert witnesses would have to testify solely
from information contained in the printed record.
That Robinson's hearing would be held six years after
the fact aggravates these difficulties. . . .
If the State elects to retry Robinson, it will of
course be open to him to raise the question of his
competence to stand trial at that time and to request
a special hearing thereon. In the event a sufficient
doubt exists as to his present competence such a
hearing must be held. If found competent to stand
trial, Robinson would have the usual defenses
available to an accused.
There is no genuine issue as to any material fact with respect
to Count I of the Petition, and Rivers is entitled to a judgment
on that Count as a matter of law. This Court will issue a writ of
habeas corpus, with respondents directed to discharge Rivers
unless the State of Illinois gives him a new trial within a
reasonable time. Pate, 383 U.S. at 386, 86 S.Ct. at 842.
In its September 3, 1981 memorandum opinion and order (the
"Opinion") this Court granted summary judgment in favor of
petitioner Clarence Rivers ("Rivers"). Summary judgment was
limited to Count I of Rivers' habeas corpus petition and
predicated upon the failure of the state trial court to have
provided Rivers with a post-trial hearing to determine whether he
had been mentally fit to stand trial.
Respondents have moved for reconsideration on the false premise
that the United States Supreme Court's recent decision in Sumner
v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)
requires deference to the state court's determination. That
contention deserves short shrift, and respondents' motion is
This Court has consistently applied Sumner where it is properly
applied. See, e.g., People ex rel. Smith v. Elrod, 511 F. Supp. 559
(N.D.Ill. 1981). But Sumner deals only with the effect to be
afforded factual determinations by state courts as mandated by
28 U.S.C. § 2254(d). Where as here the issue is a legal question —
the application of federal constitutional law to undisputed facts
— such deference is wholly inappropriate. Cuyler v. Sullivan,
446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) is
only the most recent application of the mandate by the Supreme
Court in that respect, a proposition as to which Townsend v.
Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)
provides the classic statement.
For that reason respondents' motion for reconsideration is
denied. Respondents are again directed to discharge Rivers unless
the State of Illinois gives him a new trial within a reasonable