Ronald Watson LAFFERTY, Petitioner-Appellant, v. Gerald COOK, Warden of the Utah State Prison, Respondent-Appellee, 949 F.2d 1546

SEYMOUR, Circuit Judge. Ronald Watson Lafferty was convicted in Utah state court of two capital felonies and sentenced to death. After his convictions and sentences were affirmed on direct appeal, see State v. Lafferty, 749 P.2d 1239 (Utah 1988), Lafferty filed a petition for habeas corpus relief in federal district court under 28 U.S.C. §, 2254 (1988). During the federal proceedings, it was discovered that several transcripts of proceedings in state court had been omitted from the record on appeal.

At the suggestion of the federal court, Lafferty filed a petition for rehearing with the Utah Supreme Court to enable it to consider Lafferty’s claims in light of the complete record. That court determined that the additional transcripts did not warrant any change in its prior decision. See State v. Lafferty, 776 P.2d 631 (Utah 1989). Lafferty’s federal habeas petition was then denied by the district court. We conclude that the state trial judge applied the wrong legal standard in finding Lafferty competent to stand trial.

Although we do not hold that Lafferty was incompetent as a matter of law, we do conclude that the record contains evidence from which a fact finder could have found him incompetent under the proper legal standard. We therefore grant the petition for writ of habeas corpus. I. FACTUAL BACKGROUND Prior to the events giving rise to his convictions, Ronald Lafferty developed unorthodox religious views which resulted in his excommunication from the Church of Jesus Christ of Latter-Day Saints (the Mormon Church). His religious views also apparently played some role in his marital difficulties and his divorce.

Lafferty’s wife, Dianna, received encouragement in her decision to leave him from one of the murder victims, Brenda Lafferty, who was the wife of Ronald’s brother Allen. Dianna also was given help during her marital crisis from Richard W. Stowe and Chloe Low. Stowe, a Stake President in The Mormon Church, drew on Church resources to give Dianna food and money after she left Lafferty. Chloe Low, the wife of a Mormon Bishop, counseled Dianna and took her in for a short time.

Lafferty’s religious views were shared by his brother Dan, and to some extent by two men, Charles Alan “Chip” Carnes and Richard M. “Rick” Knapp, whom Ron and Dan Lafferty met while traveling outside Utah. These four participated in prayer meetings at which they discussed Ron Laf-ferty’s religious revelations, one of which concerned the “removal” of Lafferty’s sister-in-law Brenda, her infant daughter Erica, Richard Stowe, and Chloe Low. According to the trial testimony of Carnes and Knapp, on the day of the murders Ron and Dan Lafferty, Carnes, and Knapp drove to Brenda’s home.

Ron and Dan went into the house and killed Brenda and Erica by slitting their throats while Carnes and Knapp waited outside in the car. The four men then drove to the Low house, but the Lows were not there. After burglarizing the home, the men drove on to the Stowe home but missed the turn to the house. They then left Utah. The Laffer-tys were ultimately arrested in Reno, Nevada. The State raised the issue of Lafferty’s competency to stand trial early in the proceedings. After a series of examinations, hearings, and rulings, which are detailed below, the state trial court determined that Lafferty was competent.

Prior to this ruling and during a period when the court had found Lafferty to be incompetent, Lafferty’s counsel filed a notice of intent to present an insanity defense at trial. After the final competency ruling, Lafferty and his counsel attended a telephone hearing at which the court attempted to ascertain whether Lafferty still intended to present the defense. Under state law, a defendant who wishes to assert this defense must cooperate in a pretrial mental examination by two court-appointed experts. Lafferty stated that he did not intend to cooperate because he did not believe he was insane.

At a subsequent pretrial hearing, the court denied a renewed motion by Lafferty’s counsel to withdraw and Lafferty’s request to represent himself, because Laf-ferty would not personally state on the record that he wished to represent himself. However, the court informed Lafferty that he would have every reasonable opportunity to direct his counsel’s strategy and presentation of the case. The court also considered Lafferty’s renewed motion to assert an insanity defense.

Lafferty’s attorney represented to the court that Lafferty’s prior refusal to cooperate, which Laf-ferty apparently did not recall, was based on a mistaken belief that Lafferty would still be able to present testimony at trial from experts who had already examined him during the competency proceedings. The attorney stated his intent to use that evidence, if he had control of the case, to the fullest extent possible.

The court denied the motion to allow the insanity defense at trial, and reserved deciding whether evidence from the prior examinations would be admissible on the defense of manslaughter due to diminished mental capacity- During the trial, the court ruled the expert medical evidence admissible on the lesser included offense of manslaughter. When Lafferty’s counsel began to present the evidence, however, Lafferty refused to let him proceed, contrary to the attorney’s forcefully expressed belief that the presentation was absolutely imperative.

As a result of Lafferty’s decision, his attorney was left with no option but to rest. Lafferty was convicted of capital murder and sentenced to death. II. COMPETENCY Our review of the record in this case in light of the applicable law reveals that the state court’s finding of competency is fundamentally flawed and therefore is not entitled to deference under the standard of review applicable in this habeas proceeding. When a federal court considers an application challenging a state court conviction under

section 2254, the state court’s determination of a factual issue “shall be presumed to be correct” unless the federal court, upon considering the relevant part of the state court record, “concludes that such factual determination is not fairly supported by the record.” 28 U.S.C. § 2254(d)(8). Because competency is a factual issue subject to the presumption of correctness set out in

section 2254, see Demosthenes v. Baal, 495 U.S. 731, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990), our initial inquiry must be to assess whether the presumption is applicable here. Thus, we must ascertain whether the competency determination was made under a correct view of the law, and if so, whether it is fairly supported by the record, considering “that part of the record of the State court proceeding in which the determination of such factual issue was made.” 28 U.S.C. § 2254(d). A.

Standard for Determining Competency Although competence is a factual issue, that term, as this case clearly demonstrates, is not self-defining. Because competency to stand trial is an aspect of substantive due process, see Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Coleman v. Saffle, 912 F.2d 1217, 1224 (10th Cir.) (per curiam), cert. denied, — U.S. -, 111 S.Ct. 22, 111 L.Ed.2d 834 (1990); Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir.1990); Davis v.

Wyrick, 766 F.2d 1197, 1201 (8th Cir.1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1209, 89 L.Ed.2d 322 (1986), the legal standard by which competency is to be evaluated is constitutionally mandated. Accordingly, the components of that standard, required as they are by the Constitution, do not vary according to the views of a particular court. The Constitution can require but one gauge against which to determine whether, because of his mental condition, a defendant’s due process rights are violated by requiring him to stand trial.

The content of the standard of competency is therefore a question of law which we review de novo. The Supreme Court set out the legal test for competency in Dusky v.

United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam): “[I]t is not enough for the district judge to find that ‘the defendant [is] oriented to time and place and [has] some recollection of events,’ but that the ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Id..

Although the Dusky standard was first articulated in the context of a federal prosecution, the Supreme Court has indicated that this standard is to be applied in federal habeas review of state proceedings as well, see Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and the courts have done so, see, e.g., Coleman, 912 F.2d at 1224 & n. 8; Bouchillon, 907 F.2d at 592; Balfour v. Haws, 892 F.2d 556, 559 (7th Cir.1989); Davis, 766 F.2d at 1201.

The aspect of the Dusky standard that is the critical focus of attention in this case is the requirement that a defendant have a rational as well as factual understanding of the proceedings against him. While the Dusky opinion itself does not set out the facts underlying its articulation of this element of the competency test, that evidence is recited in detail in the circuit opinion which the Supreme Court reversed. See Dusky v. United States, 271 F.2d 385, 387-89 (8th Cir.1959).

The relevant record at the competency hearing there consisted of several written medical reports and the testimony of one Doctor Sturgell, “whose testimony was in substantial conformity with the reports in evidence.” Id. at 389.

That testimony, which is quoted at length below, is critical both because it illuminates the Supreme Court’s intent with respect to the meaning to be given “rational understanding,” and because the description of the defendant’s mental state there is strikingly similar to the essentially undisputed mental condition of Lafferty. “[Doctor Sturgell] explained the statement in Doctor Moreau’s report that the defendant was oriented as to time, place and person, as follows: ‘This means that he is able to know the day of the week, the hour, the place in which he finds himself geographically, and the circumstances of his present situation.

He knows he is in a court room; he knows the day of the week and the day of the year, and he knows that you are his attorney and Judge Smith is the judge. This is the orientation to person. He knows it all.’ Doctor Sturgell also expressed the opinion that the defendant understood what he was charged with, knew that if there was a trial it would be before a judge and jury, knew that if found guilty he could be punished, and knew who his attorney was and that it was his duty to protect the defendant’s rights.

It appeared from Doctor Sturgell’s testimony also that the defendant had been able to furnish, with substantial accuracy, information as to his past history and as to at least some of the events leading up to the occurrence upon which the indictment was based. The Doctor expressed the opinion that the defendant would be unable properly to assist his attorney in his defense ‘because I do not think that he can properly interpret the meaning of the things that have happened.

I don’t think he can convey full knowledge of his actual circumstances ... due to an inability to interpret reality from unreality ... to suspicions of what is going on, ... to confused thinking, which is part of his mental illness.’ The Doctor also testified that the defendant ‘would be able to tell his attorney of the events, as he recalls them, as interpreted by the thinking which is directly connected with his mental illness,’ which could result in a false factual statement to his attorney.” Id.

It is beyond dispute that the Supreme Court’s legal definition of competency, under which the conviction of a defendant in the above circumstances was set aside, mandates the conclusion that a defendant lacks the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him. Thus, he must have “a rational as well as factual understanding of the proceedings against him.” Dusky, 362 U.S. at 402, 80 S.Ct. at 789; see also United States v.

Hemsi, 901 F.2d 293, 296 (2d Cir.1990) (petitioner had intellectual understanding of charges against him but his impaired sense of reality substantially undermined his judgment and prevented him from cooperating rationally with his lawyer). Although the facts in each case vary, the circuits addressing competency after Dusky, including our own, have used a sufficient contact with reality as the touchstone for ascertaining the existence of a rational understanding. See, e.g., Coleman, 912 F.2d at 1227; Hemsi, 901 F.2d at 296; Balfour, 892 F.2d at 561; Strickland v. Francis, 738 F.2d 1542, 1551-52 (11th Cir.1984).

B. Application of the Standard The state trial court’s finding of competency in this case is fatally flawed by that court’s assessment under a standard that is not only inconsistent with Dusky, but was specifically rejected by the legal test for competency established in that case. In addition, when the evidence adduced on this issue is viewed under the proper standard, the record indisputably does not provide the fair support required to accord the finding a presumption of correctness.

The first competency assessment occurred at the trial court’s direction after the Laffertys refused appointment of counsel and indicated that they would claim the state was without jurisdiction to try them because God directed their action. The competency hearing was held on October 23-24, 1984, following examination by two alienists. Both alienists concluded in their reports that Lafferty was not competent, and one of them, Dr. Phillip Washburn, testified to that opinion at the hearing. Dr. Washburn tentatively diagnosed defendant’s mental illness as a paranoid delusional state.

The court concluded after that hearing that Lafferty was competent. A second hearing was held on November 28, 1984, following an evaluation and report by four expert employees of the Utah State Hospital, Van O. Austin, M.D., Robert J. Howell, Ph.D., Peter Heinbecker, M.D., and Jess Groesbeck, M.D. These examiners concluded that Lafferty was competent and the trial court agreed. The next hearing took place on January 28, 1985, following a suicide attempt by Laf-ferty and resulting organic brain damage due to oxygen deprivation.

The court found Lafferty incompetent, remanded him to the state hospital for further treatment, and scheduled another hearing in early April. This turn of events forced the state to try Dan Lafferty separately. He was convicted on all counts and received a sentence of life imprisonment when the jury could not agree to impose the death penalty- The last competency hearing before Laf-ferty’s trial took place on April 2, 1985. The same four examiners employed by the state submitted a report after twenty days of evaluation with respect to Lafferty’s treatment and mental condition.

The report concluded that Lafferty was not competent due to a paranoid delusional system that severely impaired his ability to perceive and interpret reality. Drs. Howell, Austin, and Groesbeck also testified in support and explanation of the opinions set out in their report. The gist of their testimony was that while Lafferty physically knew the nature of the proceedings against him, and their possible consequences, he was unable as a result of his paranoid delusional system to interpret them in a realistic way.

In this delusional system, Lafferty believed that the examining doctors, the court system and personnel, and his own lawyer were part of a corrupt man-made order which he rejected and which he believed was actually on trial. Because of these delusional beliefs, the doctors concluded that Lafferty could not cooperate with a lawyer. They stated their belief that his mental illness had degenerated to a state of incompetency as a result of the organic brain damage arising from the suicide attempt. The prosecution offered testimony by its own expert, Dr.

Eugene Thorne, a clinical and forensic psychologist and an attorney, who expressed the opinion that Lafferty was competent to stand trial. Dr. Thorne had not examined Lafferty but instead had spent four hours reviewing documents given him by the prosecution, a review he himself described as “cursory.” Hearing, April 2, 1985, at 61. When asked on cross-examination what the other doctors had used in evaluating the existence of paranoia, Dr. Thorne said: “Well, they probably used mostly interview and observation.” Id. at 67-68.

He conceded that he would have had a better opportunity to evaluate the extent of Lafferty’s paranoid delusional system if he had spent hours with him in consultation and observation as did the other doctors. Id. at 70. Dr. Thorne expressed “concerns” when given descriptions of some manifestations of Lafferty’s mental condition, such as Lafferty’s belief that his spirit was physically intermingling with the spirits of other people on the ward. Dr.

Thorne nonetheless opined that Lafferty’s belief in a judicial conspiracy that included his lawyer did not detract from Lafferty’s ability to aid his defense, and that Lafferty’s refusal to assist his attorney, while a product of his delusion, was a conscious choice. Dr. Thorne stated that he believed the existence of a paranoid delusional system was a straw dog, irrelevant to the issue of competency. Id. at 75. On recross-examination, defense counsel asked the following questions and received the following responses from Dr.

Thorne: “Q: [I]f some one is not perceiving reality in a way that a psychologist or a psychiatrist would expect, within a wide range or what we see in society, and that could lead to the conclusion that a person was not competent to stand trial. Correct? “A: —if I might just respond to that, and so that you understand where I’m coming from: Maybe I don’t understand the issue clearly, and see if I don’t. I understand the issue to be whether he has the ability, not whether something would interfere with his ability.

And, if you would keep that distinction there, I think I could address your questions a little better. You are saying: ‘Could something interfere with his ability?’ Yes, I suppose something could interfere; but the question isn’t whether it could, but whether he has the ability. “Q: If you say in the raw sense Mr. Lafferty has the ability, are you then saying that if he has a paranoid delusional system that this court believes does actively entangle itself so that Mr. Lafferty does not perceive reality as it is, are you saying that, somehow, he still has the ability and, therefore, is competent? “A: Yes.

That’s exactly what I’m saying. “Q: All right. Well, if he is mentally ill, just assume that for a moment, as Mr. Watson did,— “A: Right. “Q: —that he has a paranoid delusional system, and that it is interfering with his perception of reality. Okay? “A: Yes. “Q: Now, do you still think he’s competent to stand trial? “A: I do, as long as he meets the standards of competency. The mental illness is irrelevant as to whether or not he meets the standards of competency, as I understand them, sir. “Q: Do you mean to tell me that ... [i]f a person understands that he’s in a courtroom, understands Mr.

Watson’s there trying to convict him understands he has a court-appointed attorney, and he see’s the judge there, is a person who can physically see that say: yes, I’m in the courtroom; he’s competent to proceed? “A: The standard is not that stringent. The standard is that he is able to assist you, Mr.

Johnson, in his defense, and understands the nature of the proceedings and the punishment associated with the charge, if found guilty.” Id. at 75-77 (emphasis added). “Q: So if you can see and hear and talk, you are competent to stand trial. “A: Well, you are partly there, you are half-way there. “Q: Well, what’s the other half? “A: Well, the other is that he understands, that he understands what the nature of the proceedings are; that he’s able to participate in those proceedings if he so chooses.” “Q: Let me stop you there.

To ‘understand the proceedings,’ that means kind of understanding them as you and I do, but not exactly as you and I, but certainly in some range of normal. Correct? “A: Correct. It was obvious that the defendant didn’t understand the nature of the Fifth Amendment, although he did have some idea that he didn’t have to testify. Go ahead. “Q: But if he sees this system, if he sees the trial and the claim in a totally unrealistic sense, as determined by a psychiatrist or a psychologist, that’s the type of thing you are talking about that would interfere with his ability to rationally understand.

Correct? “A: Well, that would certainly go to an insanity defense, but it certainly wouldn’t go to a competency one.” Id. at 80-81 (emphasis added). In Dr. Thorne’s opinion, therefore, even if Lafferty had a paranoid delusional system that actively prevented him from seeing reality as it is, he was nonetheless competent. In a written decision following this hearing, the trial court determined that Lafferty was competent. The court found Laf-ferty to be oriented to time and place and aware of the nature of the court proceedings.

The court then stated: “Although the defendant may be operating within a paranoid delusional system, there is no evidence except a suicide attempt, of irrational behavior within that system or within the system of his religious beliefs. In fact, his refusal to cooperate, assist counsel or admit that he is amenable to the laws of the State of Utah are all consistent with his paranoia and any delusional system pertaining to religion.” Memorandum Decision, April 8, 1985, at 7.

In rejecting the examiners’ finding of incompetency, the court stated its opinion that “the examiner’s [sic] conclusions are based almost entirely upon the 1960 case of Dusky v. United States, 360 [362] U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] (1960) and that they have misapplied the law enunciated by that case. Dusky is a very short per curiam opinion with no underlying facts stated therein, and it is not possible to ascertain from the opinion the context in which the words relied upon by the examiners were used.

Subsequent cases, however, have delineated what the Dusky standard is, which have been set forth in the State’s memorandum, including Weiter v. Settle, [193 F.Supp. 318 (W.D.Mo.1961) ], and those cases do not mandate a finding of ‘incompetency to proceed’ with respect to defendant Ronald W. Lafferty.” Id. at 10-11. The excerpts quoted above reveal unambiguously that the state trial court’s evaluation of Lafferty’s competency was infected by a misperception of the legal requirements set out in Dusky, apparently caused by the court’s lack of knowledge of the underlying facts in that case. Indeed both Dr.

Thorne and the court appear to have embraced the view that factual understanding alone is sufficient, a view, as discussed above, that is totally contrary to the circumstances in Dusky itself and that has been rejected by the cases applying the Dusky test. This court cannot accept as consistent with Dusky and its progeny a finding of competency made under the view that a defendant who is unable to accurately perceive reality due to a paranoid delusional system need only act consistently with his paranoid delusion to be considered competent to stand trial. In making its determination under an erroneous

interpretation of Dusky, the state court in essence accepted the experts’ view that Lafferty suffered from paranoid delusions which drove his decisions in these proceedings. Indeed, there does not appear to be any material dispute as to Laf-ferty’s mental condition, in view of the testimony of Dr. Thorne that in his opinion Lafferty’s paranoid delusions did not render him incompetent even if they compelled his defense decisions. When the evidence is evaluated under a proper view of Dusky, the record generated by the pretrial proceedings does not support a holding as a matter of law that Lafferty was competent.

In so concluding, we recognize that a defendant’s trial demeanor may in some cases constitute relevant evidence on the issue of competency. The state court’s reliance in this case on its assessment of Lafferty’s demeanor at trial to bolster its pretrial finding of competency, however, is unpersuasive for several reasons. First,

section 2254(

d) expressly states that a federal court on habeas review of a state fact finding must determine whether that finding has fair support based on “that part of the record of the State court proceeding in which the determination of such factual issue was made.” 28 U.S.C. § 2254(d)(8). The critical competency determination here occurred on April 8, 1985, prior to Lafferty’s trial.

It was this finding of competency that enabled Lafferty to make the crucial decision to waive an insanity defense, contrary to the forceful advice of his frustrated attorney, by refusing to cooperate in the mental examinations which are state-law prerequisites to assertion of the defense at trial. Accordingly, we are statutorily required to look only at the pretrial proceedings in evaluating whether the pretrial competency determination finds fair support in the record.

Moreover, uncontradicted expert testimony indicates that the physical demeanor of a person suffering from a paranoid delusional system sheds no light on the extent to which his defense decisions are driven by a deluded perception of reality. Indeed, as was brought out by expert testimony at the first competency proceeding, “this kind of illness [is] so very difficult to recognize by just untrained people.” Hearing, October 28-24, 1984, at 67.

As was the case here, a defendant suffering from this illness may outwardly act logically and consistently but nonetheless be unable to make decisions on the basis of a realistic evaluation of his own best interests. See, e.g., Bouchillon, 907 F.2d at 593-94. Finally, the state court’s assessment of the trial demeanor evidence upon revisiting the competency issue during and after trial is of doubtful validity given the court’s mistaken view of Dusky’s rational understanding requirements.

In reaffirming its pretrial determination after hearing argument on Lafferty’s post-trial challenge to the competency finding, the court clearly proceeded under its earlier

interpretation of Dusky, stating that it was “convinced that the factual findings of competency to proceed were supported by substantial evidence, and there was no error with respect to either the fact or the law as to competency to proceed.” Hearing, May 28, 1985, at 57-58. The state court paid lip service to Dusky’s requirement that competency requires a rational understanding which is different from, and more than, factual understanding. See Dissent at 1556-57.

Nonetheless, in view of the evidence that Lafferty’s illness interfered with his accurate perception of reality, the court’s statements that Lafferty’s understanding was rational simply renders that requirement a nullity. Indeed, as revealed by its pretrial ruling finding Lafferty competent, the trial court believed that competency merely requires no more than satisfaction “of the simple ‘understand and assist’ standard of the common law,” Memorandum Decision, April 8, 1985, at 11.

Under the state court’s view, then, a defendant suffering from paranoid delusions is to be held competent to make decisions on how best to present his mental state to a judge and jury even though that mental illness may strip him of the ability to realistically determine where his best interests lie. Indeed, a defendant operating in a paranoid delusional system may well believe that he is not mentally ill and therefore, as did Lafferty, refuse to present the defense at all. This result cannot be reconciled with the requirements of due process.

In sum, we conclude that the state court’s finding of competency cannot stand given the court’s failure to proceed under a proper understanding of the due process requirements set out in Dusky. We further conclude that a competency determination cannot be made on this record as a matter of law. Finally, we hold that the passage of time has rendered impractical a remand for an after-the-fact hearing on competency. See Drope, 420 U.S. at 183, 95 S.Ct. at 909; Pate, 383 U.S. at 387, 86 S.Ct. at 843 (inherent difficulty of retrospectively determining competency aggravated by six year delay).

Accordingly, we grant the writ, and vacate the conviction and sentence. The state is of course free to retry Lafferty. Should he again raise his competency to stand trial, that assessment can then be made under the proper legal standard. PETITION GRANTED, JUDGMENT AND CONVICTION VACATED. . The presumption of correctness is not irrebuttable.

If a state court determination is fairly supported by the record, and thus presumed correct, the petitioner in a federal evidentiary hearing may nonetheless prevail by shouldering the burden of establishing “by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d). However, a petitioner is not required to disprove the state fact finding by convincing evidence until and unless that finding has been held entitled to the presumption of correctness. The threshold question is whether the competency determination is fairly supported by the record. See Demosthenes v.

Baal, 495 U.S. 731, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990). . Unlike the dissent, we do not attach significance to the fact that the defendant in Dusky was ultimately found competent in October 1960. The first competency hearing, which was the one the Supreme Court held to be constitutionally infirm, was held in January 1959, ál-most two years earlier, and was based on reports made prior to that. The defendant's mental condition in October 1960 simply sheds no light on the Supreme Court’s holding in Dusky or on our inquiry here. .

The dissent takes issue with our citation of these cases as support for our conclusion that Dusky requires a sufficient contact with reality, apparently because the dissent views the cases as factually distinguishable. However, the relevant consideration is not the type of mental condition with which a particular defendant is afflicted, nor the way in which the condition manifests itself.

Rather, the critical inquiry is whether the defendant’s mental condition, however it may be labeled and whatever symptoms it may produce, prevents the defendant from having a rational or factual understanding of the proceedings against him or significantly prevents the defendant from consulting with his lawyer. The cases cited are significant because each of them recognizes that this inquiry is required by Dusky. .

By stating that the state court's determination of competency is entitled to a presumption of correctness, see Dissent at 1558, the dissent simply begs the pivotal question in this appeal by assuming the answer. The initial inquiry must be whether the Utah court made its fact findings under the correct legal standard of competency. It is elemental that fact finding made under an erroneous view of the governing law cannot be presumed correct. Only after concluding that a state court used the proper standard does a habeas court turn to the issue of the presumption of correctness.

The dissent here has placed the factual cart before the legal horse. . At the arraignment, Ron Lafferty questioned the court about whether it could deal with spiritual matters. After the court told him that he was in a temporal court, not a spiritual one, Lafferty declined to enter a plea: "MR. RON LAFFERTY: I guess I’m not [prepared to enter a plea], your honor, because of the statement that you made because of the religious overtones and spiritual overtones in this matter.

You just mentioned that this court doesn’t deal with that sort of thing so it seems to me that you — perhaps you don’t have jurisdiction here. As a result, I'm not prepared to enter a plea because I don’t want to give up my right to challenge the jurisdiction of this court, sir.” Hearing on September 21, 1984 (arraignment proceedings), at 11. . It should be noted that during the penalty phase of the trial, both Dr. Groesbeck and Dr. Howell testified that they had come to believe their November 1984 report finding defendant competent was incorrect. .

In determining that the state court’s conclusion of competency was fairly supported by the record, the Supreme Court in Demosthenes, 110 S.Ct. at 2225, emphasized that three psychiatrists who had examined the petitioner had found him competent, whereas the only evidence supporting a contrary opinion was the affidavit of a psychiatrist who had not examined the petitioner but instead had only reviewed the reports of the other psychiatrists. . Notwithstanding the state court’s determination that defendant was competent to stand trial, it found that “Mr.

Lafferty lacks the ability to engage in a rational decision making process regarding the acceptance of mental treatment as demonstrated by evidence of inability to weigh the costs and benefits of treatment." Id. at 8. . The Weiter case, which the state court quoted and upon which it primarily relied, does not cite Dusky or purport to interpret it. See Wieter v. Settle, 193 F.Supp. 318 (W.D.Ma.1961). .

We disagree with the dissent’s statement that ”[n]o meaningful distinction can be made between those cases addressing a trial court’s determination of competency and those addressing a determination of entitlement to a hearing on competency.” Dissent at 1560 n. 4. When, as in the instant case, a competency hearing has been held, the issue on habeas review is whether the state court’s competency finding, assuming that the determination was made under the proper standard, is entitled to a presumption of correctness. However,

section 2254(d)(8) directs us when doing so to consider that part of the record of the state proceeding upon which the determination was made, in this case those proceedings held prior to trial. When, on the other hand, no state court competency hearing has been held and the defendant has proceeded to trial without such a hearing, the issue is not whether the state record supports a finding of competency.

Rather the inquiry on habeas is whether the state court denied the defendant his right to due process by ignoring evidence, including evidence at trial, indicating that the defendant might not be competent, and that a hearing to ascertain competency was therefore required. Evidence of a defendant’s trial demeanor is of course relevant in making this assessment because the state court’s duty to inquire as to competency continues through trial. By failing to make the distinction set out above, the dissent incorrectly relies on cases such as Drope v.

Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); and Coleman v. Saffle, 912 F.2d 1217 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 22, 111 L.Ed.2d 834 (1990) (per curiam), which involve the denial of a hearing, as support for its argument that we should look at trial demeanor to support a competency determination made prior to trial. . We do not perceive any relevance in the dissent’s observation that tax protestors often behave in bizarre ways and may make decisions contrary to their best legal interests.

See Dissent at 1566 n. 15. The dissent assumes such defendants to be competent, thus bypassing the critical inquiry in the instant case, and then asserts that because those defendants are competent, Lafferty must also be competent because he too refused to follow the advice of his counsel. Even assuming all tax protestors are competent, the fact that some people who hold wrong beliefs may nonetheless be competent proves nothing about Lafferty's condition.

The issue is not whether particular beliefs are “wrong,” but whether those beliefs are the product of a deluded view of reality that significantly prevents a defendant from consulting with his lawyer. To say on this record as a matter of law, as the dissent apparently wishes to do, that Lafferty could have consulted with his lawyer if he had chosen to do so is either to disregard the substantial evidence that Lafferty’s mental disease rendered him unable to make that choice, or to conclude that Dusky does not require decisions based on reality.

The first alternative is precluded by the record, and the second is precluded by the law. . Lafferty raises numerous other constitutional challenges to his convictions and sentences. In view of our resolution of the issue of his competency to stand trial, we need not address his remaining arguments.