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December 31, 1981


The opinion of the court was delivered by: Bua, District Judge.


Petitioner, Jose Mireles, was convicted of the offense of murder following a jury trial in the Circuit Court of Cook County on June 7, 1976. In his Petition for a Writ of Habeas Corpus, petitioner contends that he is being unconstitutionally detained in the Illinois State Penitentiary at Menard, Illinois. The alleged unconstitutional detention complained of arises from the failure of the state trial judge to sua sponte order a mental competency hearing where the facts known to the trial court created a bona fide and serious doubt as to petitioner's mental competency to stand trial, and the trial court in fact found that it had a bona fide doubt as to petitioner's competence but resolved this doubt without conducting an evidentiary hearing. Petitioner has exhausted all available state remedies. Before the court are the parties' cross motions for summary judgment.

The facts surrounding petitioner's claim are not in dispute and are substantially as follows. On March 30, 1975 petitioner killed the woman with whom he had lived by strangling her with an electrical cord. Shortly thereafter, he unsuccessfully attempted suicide by stepping on the "third" or "electric" rail in a subway station. Later the same day, petitioner was arrested and he admitted the commission of the offense to the police. On March 31, 1975 petitioner was hospitalized at Cermak Hospital under the care of Dr. Baker Howell. Petitioner remained hospitalized under Dr. Howell's psychiatric care up to the date of his trial in March, 1976.

Petitioner was initially represented in the trial court by art Assistant Cook County Public Defender. On April 11, 1975 the Assistant Public Defender requested that petitioner be examined by a psychiatrist to determine his mental fitness to stand trial. On April 22, 1975 petitioner was examined by Dr. Langner who reported to the court that petitioner was suffering from schizophrenia latent type, that he was experiencing auditory hallucinations, and that he was quite depressed and had made numerous previous suicide attempts. This report concluded that petitioner was currently not competent to stand trial.

On July 10, 1975 private counsel filed his appearance on behalf of the petitioner and the Public Defender withdrew. On August 26, 1975 petitioner's private counsel reported that he did not desire another fitness examination and that he had no "problem with cooperation" with his client despite petitioner's extensive history of mental and emotional problems. The trial court, on its own motion, ordered that petitioner be examined to determine his present fitness.

On October 3, 1975 petitioner was examined by Dr. Robert Reifman of the Psychiatric Institute of Cook County. Dr. Reifman reported his opinion that petitioner was not mentally fit to stand trial. On October 31, 1975, at defense counsel's request, a competency hearing was set for November 30. On November 11, however, defense counsel informed the court that he believed that defendant was fit to stand trial. This belief was based upon his experience with petitioner and the report of petitioner's privately retained psychiatrist, Dr. Judas. The court ruled that in light of the earlier finding of Dr. Reifman, it would schedule a fitness hearing on its own motion.

On December 23, 1975, defense counsel presented to the court the report of Dr. Judas. In that report Dr. Judas, who examined defendant on November 12, concluded that defendant was fit to stand trial. The following is excerpted from the report.

    "At this point his thought processes are not
  sufficiently interfered with nor is his affect so
  far withdrawn that he cannot understand or
  cooperate in a trial. It seemed to me this was
  adequately demonstrated by how he was able to
  deal with me in the interview.
    Specifically, he was able to tell me why I was
  here to examine him according to what I knew his
  lawyers had told him. In addition, he held up
  without disintegration to extensive investigation
  on my part into his personal history, his
  offense, and the nature and the functions of his
  lawyers, social worker, and his fitness hearing
  and trial.
    I see no good purpose in continuing to postpone
  his trial. As a matter of fact there may be
  adverse consequences as he sits out his guilt and
  uncertainties. Under the circumstances of his
  present confinement, he is in as good shape as he
  is apt to be."

Defense counsel again opposed holding a fitness hearing, basing this opposition on the report and on his experience with the defendant. However, the matter was continued to January 21, 1976. On that date the court received the report of Dr. Reifman, who had examined the defendant a second time on January 16, 1976. He concluded that defendant was fit to stand trial "with medication." Upon inquiry by the court one of defendant's attorneys stated that to the best of her knowledge defendant was receiving medication. She also advised the court it was in the best interest of the defendant to have the trial as soon as possible. The court stated:

    "The competency hearing was scheduled on the
  basis that there was some bona fide indication
  that the defendant may not be competent to stand
  trial or fit to stand trial.
    Your doctor, Dr. Junas (sic), who examined the
  defendant, indicated it was her opinion that the
  defendant was fit to stand trial.
    Dr. Reifman, upon re-examination, has indicated
  that it was his opinion at the present time that
  the defendant is fit to ...

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