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July 10, 1978


The opinion of the court was delivered by: PARKER


Former Representative Otto E. Passman currently faces two indictments arising out of his alleged participation in the well-publicized Korean influence-buying scandal. The immediate question to be determined is whether Mr. Passman, now 78 years old and suffering from various ailments, is mentally and physically competent to be arraigned and stand trial. The Court has reviewed the evidence and testimony presented at an exhaustive competency hearing, considered the legal memoranda and argument of counsel, and determines that the defendant is competent to participate in the proceedings against him.


 The government accuses Mr. Passman, in brief, of having used his office to pressure the Republic of Korea to purchase rice from United States exporters, through the Food for Peace program and commercial sales; and to ensure that Mr. Tong Sun Park of Korea would be agent for such sales and thereby obtain a commission, from which Park paid Passman large sums of cash. The first indictment, filed March 31, 1978, charges violation of the conspiracy, bribery and illegal gratuity statutes. *fn1" The second indictment, filed April 28, 1978, charges tax evasion. *fn2"

 The defendant was hospitalized in the psychiatric unit of Touro Infirmary, New Orleans, Louisiana, two days before return of the first indictment. His counsel moved to postpone arraignment, claiming that defendant was incompetent to stand trial, suffered from "significant depression, lapses of memory and an inability to concentrate and think clearly" and was unable to assist effectively in his defense. Representations were also made that the defendant's physical health was too poor to allow him to attend court proceedings without substantial risk.

 Mr. Passman's confinement at Touro Infirmary extended from March 29 until May 19, when he left against medical advice. Within several days, however, he was admitted to the St. Francis Hospital in his home town of Monroe, Louisiana, suffering from pneumonia and possible congestive heart failure. He entered St. Francis on May 22 and was discharged on June 1.

 On May 3, 1978, an Order was entered appointing two medical experts as witnesses of the Court: Dr. John V. Russo, an internist, and Dr. Leon Yochelson, a psychiatrist. These doctors examined the defendant at the Touro Infirmary in mid-May and again in Washington, D.C., on June 16.

 The competency hearing began on June 19, 1978, and included four days of testimony followed by the legal argument of counsel. *fn3" The Court heard from the two court-appointed expert witnesses, three expert and one lay witness presented by the defense, and one expert and one lay witness presented by the government. Direct and cross-examination of the witnesses was extensive. The Court also had the benefit of reports written by each of the expert witnesses and other physicians, and records covering defendant's most recent hospitalizations at Touro Infirmary and St. Francis. The professional witnesses and counsel for the parties also had full access to medical reports and hospital records.


 The determination of the defendant's competency to be arraigned and stand trial is ultimately a legal decision to be made by the Court in the exercise of its sound discretion. United States v. Knohl, 379 F.2d 427, 434 (2d Cir.), Cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967). The decision is one of utmost importance, involving as it does the defendant's fundamental constitutional rights to due process of law, effective assistance of counsel and a fair trial. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), Citing Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956). While the standards of mental and physical competency are easily stated in the abstract, they can be fairly applied only in reference to the particular defendant involved, here former Representative Passman. *fn4" Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460 (1968). Accordingly, the various opinions ventured by the witnesses and the presentations and arguments of counsel have all assisted the Court in the exercise of its discretion.

 The classic test of mental competency, as enunciated by the Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), is:

whether (defendant) 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.

 In Dusky and in the controlling statute, *fn5" the competency standard is stated in the conjunctive: the defendant must be able both to assist in his own defense and understand the proceedings against him.

 The requirement that the defendant have a rational and factual understanding of the proceedings against him safeguards the accuracy of the guilt determination process, since "(o)ne who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence." *fn6" At a minimum, the defendant should understand the substance of the indictment, the defenses available to him, and the essentials of criminal trial proceedings. *fn7" The Court does not address this issue in detail because the expert witnesses agree that Mr. Passman does have such an understanding of these proceedings.

 The second Dusky requirement, that the defendant be able to consult with his lawyer and assist in his defense, does not refer to his own legal judgment but rather to "such phases of a defense as a defendant usually assists in." Lyles v. United States, 103 U.S.App.D.C. 22, 27, 254 F.2d 725, 729-30 (1957), Cert. denied, 356 U.S. 961, 78 S. Ct. 997, 2 L. Ed. 2d 1067 (1958). Judicial decisions, notably those of this Circuit, identify the primary factors deserving consideration here. Perhaps most important is the state of the defendant's memory, since, at all stages of the case, he should be able to relate pertinent facts, names and events to his attorneys. However, the defendant need not remember every fact that trial might encompass; even defendants with amnesia have been found competent to stand trial. Wilson, supra, 129 U.S.App.D.C. at 110-111, 391 F.2d at 463-64; United States v. Hearst, 412 F. Supp. 858, 861 ...

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