McGUIRE, District Judge.
The individual in this case stands accused in a 9-count indictment of the crimes of robbery, assault with a dangerous weapon, and carrying a dangerous weapon, in violation of specific and indicated provisions of the District of Columbia Code, all arising from events occurring in the afternoon of October 2, 1964 and in which it is alleged he was a participant. Among other things it is charged that the accused was involved in the holding up of two drug stores and the theft of a car. Defendant's alleged criminal activities terminated when, during a high speed police chase, he lost control of the stolen car he was driving and crashed into an abutment. In this crash his companion was killed and he himself severely injured. Taken unconscious to the Washington Hospital Center he remained there until he was transferred, still unconscious, to the District of Columbia General Hospital on October 7. He did not regain consciousness until October 26, 1964. He was subsequently diagnosed as having suffered a cerebral contusion and concussion of a severe nature leaving him with a residual left-sided partial paralysis and damage to the brain.
The case was set for arraignment on January 29, 1965 and the jacket entry indicates it was continued for one week for appointment of counsel. On February 5, defendant was arraigned, pleaded not guilty, and trial date was set.
When interviewed by his court appointed counsel, defendant indicated that he had absolutely no recollection of any nature of any events that took place on the afternoon of October 2, 1964. On the basis of this information, on February 19, 1965 a motion made in his behalf for mental examination was heard and granted, and on February 23 he was committed to St. Elizabeths Hospital for a period not to exceed sixty days for mental observation.
This period was subsequently extended at the request of the hospital for an additional thirty days.
On April 14 and May 19, 1965 he was examined and his case reviewed in detail at a medical staff conference. At that time he was found to be without mental disorder. The hospital, however, presuming in the circumstances to pass upon the legal question concluded he was incompetent for trial. It stated further that no symptoms of mental disease existed at that time; that he was well oriented, in contact with his environment; that his thinking was logical and coherent; and that there was no evidence of any symptoms of a psychotic or psychoneurotic process.
Alluding then specifically to the matter of competency, it was stated he "is suffering from an organic amnesia, resulting from the automobile injury he received on October 2, 1964 and which amnesia has existed for several months. He is, however, aware of the charges against him, although he claims loss of memory with regard thereto." And further, that while organic amnesia and left-sided partial paralysis were found and it was concluded that they were sequellae of cerebral contusion and concussion, it was specifically concluded he was not suffering from a mental disease or that the so-called brain injury had resulted in any abnormality of thought or behavior "other than his amnesia * * *" and that it was the opinion of the hospital further that he is not now [May, 1965] and was not on October 2, 1964 suffering from any mental disease or defect and was not receiving any medication.
As a consequence, a mental competency hearing was had June 22, 1965 and defendant was found to be mentally incompetent to stand trial.
And so the matter lay until August 24, 1966. At that time the hospital advised the Court that since the hearing on June 23, 1965 serial examinations of the individual patient had been conducted revealing a continuation of his amnesia as well as the left-sided partial paralysis. Again the hospital repeated that it was believed that such was the result of a cerebral contusion and concussion resulting from the injury sustained on October 2, 1964 and that it was believed further "that the amnesia is permanent, and that it does interfere with the patient's ability to assist counsel in his own defense", indicating further: "However, the patient has a rational and realistic understanding of the nature of the charges against him, based on the information given him since his injury." It further stated that since in its view he was not presently suffering from a mental disease or disorder and that he probably was not suffering from such a disorder on October 2, 1964, it was recommended that the Court take appropriate action to dispose of the matter at least from the standpoint of the hospital.
In the meantime, his counsel wrote the hospital authorities and was advised on July 29, 1966 that while it was still their opinion he would not be able to aid in his own defense in terms of remembering what happened to him on the day of the alleged offenses, however, being without mental disorder and understanding fully the charges against him, he can "synthesize an accurate historical picture of what certainly must have happened." And then changed its hitherto expressed position with the caution and observation: "It is not for us to say whether he is competent from the legal point of view, however."
Prompted by this communication a second competency hearing was scheduled for and held on September 27 and 28, 1966, at which time the diagnosis contained in the hospital report was amplified and corroborated by expert medical testimony. It is the finding of this Court that this defendant is a person who, while in the full possession of his mental faculties, including the faculty of memory, on the afternoon of October 2, 1964, has no memory of any events in which he participated on that afternoon; that this amnesia is permanent; that the cause of this erasure of memory is brain injury sustained in an automobile accident which occurred at a point in time subsequent to the times in which the offenses charged in the indictment took place; that while he has no present independent recollection of the events of the afternoon in question he can construct a knowledge of what transpired from information given to him from other sources; and that except for this vacuity of memory he is perfectly able to follow the course of the proceedings against him and discuss them with his attorney.
The defendant, however, claimed that it must be concluded that he is incompetent to stand trial. Naturally, the prosecution objects, and thus the Court must make a judicial determination of the competency of the accused to stand trial.
The basic concern of the Court in a case such as this where a defendant's mental state is raised as a plea in bar of prosecution is whether the individual in question is presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly assist in his defense. 24 D.C.Code, § 301 and 18 U.S.C. § 4244.
The Supreme Court has commented concerning the nature of the inquiry that the Court must make under such statutes, stating:
"* * * it 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.'" Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
In discussing the concept of fitness to stand trial the United States Court of Appeals for the District of Columbia Circuit has utilized the guide that:
"'[Competency] denotes the intellectual and emotional capacity of the accused to perform the functions which are essential to the fairness and accuracy of a criminal proceeding.'" Pouncey v. United States, 121 U.S.App.D.C. 264, 266, 349 F.2d 699 (1965)
Since this defendant makes no claim of present insanity or inability to understand the proceedings against him, the sole issue before the Court is whether standing alone his absence of present independent recollection of the events of the afternoon in which the crimes charged were perpetrated renders him unable to properly assist in his defense, i.e. whether his found amnesia constitutes incompetency per se
or whether, in the words of Dusky, he lacks "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" or, to paraphrase the observation made in Pouncey, supra, whether the capacity of the accused to perform the functions essential to the fairness and accuracy of a criminal proceeding is lacking.
It has been said that properly assisting in the defense comprehends participating "* * * into such phases of a defense as a defendant usually assists in, such as accounts of the facts, names of witnesses, etc." Lyles v. United States, 103 U.S.App.D.C. 22, 26, 27, 254 F.2d 725, 730 (1957). While this statement does not constitute a conclusive definition, it nods in the direction that the ability to remember the facts surrounding the occurrence of the alleged offense is normally expected to be present. It does not, however, answer the question directly, if it answers it at all, whether loss of such knowledge through amnesia constitutes incompetency per se. If memory is required, then this defendant would necessarily be entitled to release, as his amnesia is regarded as permanent; he is not presently insane or potentially dangerous to himself or others, and thus commitment under the terms of 24 D.C.Code, § 301(a)
would be illegal. Greenwood v. United States, 350 U.S. 366, 76 S. Ct. 410, 100 L. Ed. 412 (1956) and Rouse v. Cameron, D.C.Cir., 125 U.S. App. D.C. 366, 373 F.2d 451, decided October 10, 1966.
But such release would be repugnant to the basic philosophy of our criminal jurisprudence in bringing to bar those who are morally responsible for their crimes,
and it is on the ground that accepting loss of memory as what amounts to a plea in bar in effect exculpates an accused from responsibility when in fact he may be responsible, that the common law has generally rejected this plea.
A succinct and considered summary of the common law position is contained in Russell v. H. M. Advocate, 1946 S.C.(J.) 37. In that case an otherwise sane and lucid accused advanced the argument that her hysterical amnesia which subsisted at the time of the commission of the crime and prevented her present recollection of the time in question, rendered her incompetent to stand trial. The Court observed:
"It is, I think, plain from the unbroken practice followed from the earliest dates to which our records extend, that in dealing with pleas in bar of trial founded on some abnormal condition in the accused, the Court has balanced against each other two major considerations, viz., (1) fairness to the panel, who should not be tried if and so long as he is not a fit object for trial, and (2) the public interest which requires that persons brought before a criminal Court by a public prosecutor should not be permitted to purchase complete immunity from investigation into the charge by the simple expedient of proving the existence at the diet of trial of some mental or physical incapacity or handicap." pp. 46-47.