rational explanation in view of the defendant's circumstances, particularly under the facts of these cases.
6. The court's own clear recollection of defendant and his actions and manner of testifying at the time of the trial.
7. The fact that three judges, experienced in presiding at criminal trials, each observed defendant while on trial for several days before him, and saw no such indication of mental incompetency as to cause the court to order a mental examination pursuant to 18 U.S.C. 4244.
8. The fact that two different defense attorneys, experienced in criminal trials, represented defendant in two different capital cases in June and October, 1953, yet did not defend on the ground of insanity or even move for a mental examination, although the Government had on April 2, 1953, filed and withdrawn a motion for mental examination.
9. The testimony of the psychiatrists that the conclusion in the Atlanta and Springfield reports that defendant was mentally incompetent at the time of trial meant an opinion that he was probably psychotic at that time, that their individual opinions were based in part upon a review of the summary of defendant's history which had been furnished to them, and that their examinations of defendant were made in the light of that summary.
10. The fact that much of this history was based upon defendant's own statements, and at least one statement therein which supported a finding that defendant's symptoms related back to the time of trial (that on or about May 20, 1953, he was committed to a mental hospital in Washington, D.C., for psychiatric study) is conceded by both counsel to be without foundation in fact.
11. The testimony of the psychiatrists that the onset of paranoid schizophrenia, the diagnosis of defendant's present mental illness, is gradual and insidious, and that no one can positively say at what point it develops into a psychosis.
12. The testimony of the psychiatrists that in the episodic type of schizophrenia there are so-called 'lucid' intervals or periods when the symptoms are in remission and the patient appears to react normally.
13. The testimony of Dr. Wilson, supported by that of the other psychiatrists, that the defendant Fooks has suffered psychotic episodes.
14. The testimony of Dr. Wilson and Dr. Pirkle that they could not express an opinion as to whether defendant in April and June, 1953, was competent to understand the proceedings against him or properly advise with counsel in his defense, and Dr. Rinck's equivocal answers when questioned on this point.
15. The fact that all the expert witnesses who expressed an opinion that defendant probably was mentally incompetent at the time of trial had no contact with the defendant until months after the trial, when he had undergone the stress of three convictions and sentences totalling a maximum of thirty-nine years.
16. The unanimous testimony of the witnesses who had seen defendant in February, April, May, and June, 1953, including a competent psychiatrist, that defendant appeared mentally competent during that time.
17. The testimony of all the psychiatrists that a competent psychiatrist who observed defendant at the time of his trial would be in a better position to evaluate his mental state at the time of trial, than one who judged defendant's mental competency to stand trial from an examination made some time later, plus a reveiw of defendant's history.
It is the view of this court that assuming plaintiff's present mental illness had its roots in events which transpired prior to the trial herein, at the time of that trial his mental illness had not reached such a stage as to render him incompetent to stand trial.
Therefore, treating the present proceeding as a motion to vacate the judgment and sentence on the ground of mental incompetency of the defendant at the time of trial, the court will deny the motion.
Counsel for the Government will submit promptly appropriate findings of fact, conclusions of law, and order.
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