The opinion of the court was delivered by: SWEET
Defendant William Blohm ("Blohm") has been indicted for mailing two threatening letters to a federal judge and his clerk, in violation of 18 U.S.C. §§ 876 and 1503. The Government has moved pursuant to 18 U.S.C. § 4244 to have this court determine whether defendant is competent to stand trial on these charges. For the reasons stated below, the court finds that Blohm is incompetent to stand trial within the meaning of 18 U.S.C. § 4244. Blohm is committed to the custody of Attorney General of the United States pursuant to 18 U.S.C. § 4246 until he is declared competent by this court or until the pending charges are deferred or otherwise disposed of. A progress report will be forwarded to the court and the parties within 70 days of the date hereof with respect to his competency and dangerousness and a hearing will be scheduled within 20 days thereafter.
I. Procedural and Factual History
The history of the acts leading up to Blohm's alleged crime, and the subsequent proceedings before this court, are relevant to the matter at hand. On March 18, 1982, Blohm commenced civil action 82 Civ. 1684 before the Honorable Charles E. Stewart of this Court. The action, in which Blohm was pro se, involved a claim of copyright infringement against Trans World International, Inc. ("TWI"). In the course of the litigation, Judge Stewart granted defendant's motion for summary judgment and decided certain other motions against Blohm. In apparent response to his lack of success in the litigation and after his appeal from Judge Stewart's decision was dismissed, Blohm began to submit letters and other materials to the Judge's chambers, including the following:
1. A letter to the judge's law clerk stating that "This court's penchant for secretiveness is very disturbing. If it would respond to my efforts to influence it I should not try to intimidate it."
2. A "complaint" charging Judge Stewart with conspiring to suppress evidence sought by Blohm in the litigation before Judge Stewart; the "complaint" stated that the Judge Stewart, Richard Nixon and Arnold Palmer were all in the conspiracy, because "they all play golf."
3. A letter addressed to Judge Stewart stating, "If you're unnecessarily prolonging inaction or delaying action on these motions before your court, that is a denial of due process and I will take the appropriate steps to remedy the situation. I didn't file this civil action to win any popularity contest."
4. A motion to have the civil case reassigned because of Judge Stewart's "possible association with" the defendant in the civil action, apparently because Arnold Palmer was on the board of directors of a corporate relative of TWI.
5. A letter to Judge Stewart stating "THE DIFFICULTY I FIND MYSELF IN AT THE PRESENT TIME IS NOTHING COMPARED TO THE DIFFICULTY YOU WILL FIND YOURSELF IN WHEN THIS THREAT MATTER IS ADJUDICATED IN COURT. YOUR DAYS AS A FEDERAL JUDGE, AND THOSE OF YOUR COLLEAGUES ON THE 2ND CIRCUIT COURT OF APPEALS, ARE NUMBERED. I SEEK NOTHING MORE THAN YOUR REMOVAL FROM THE BENCH, THE 'TRUE' THREAT IN THIS MATTER, AND YOU KNOW IT. IF YOU EVER HAD THE FEAR OF GOD, YOU'D BETTER HAVE IT NOW. AT THE VERY LEAST, YOU'LL BE INDICTED IN THE PRESS."
This stream of letters culminated in the actions that were the basis for Blohm's criminal indictment. He mailed a letter addressed to Judge Stewart, care of his law clerk, stating "IF I DON'T GET THE RELIEF I SEEK FROM THE U.S. COURT OF APPEALS, I'LL BRING A SAWED OFF SHOTGUN TO THE U.S. COURTHOUSE FOR THE PURPOSE OF ASSASINATING . . .". He also mailed an envelope addressed to Judge Stewart and his law clerk containing a shotgun shell box and a holder for firearms ear plugs.
Blohm's criminal indictment was assigned to this court. On May 5, 1983, upon the Government's motion, Dr. Naomi Goldstein, a qualified psychiatrist, was ordered to examine Blohm to determine his competence, as well as his tendency to commit violence which was deemed relevant to the bail motions before the court. Dr. Goldstein submitted her report on June 27, 1983. On June 20, 1983, this court issued a similar order pursuant to 18 U.S.C. § 4244 directing that Dr. Stanley Portnow, also a qualified psychiatrist, also examine Blohm for the same purpose. Dr. Portnow submitted his evaluation on July 29, 1983.
Blohm was granted bail on condition that he engage in outpatient psychological counselling and that all communications with the court be had through counsel. Both conditions remain unfulfilled, but bail has not been revoked. At a conference with counsel held on June 28, 1983, this court requested that the Government consider Blohm for its deferred prosecution program. Blohm indicated a willingness to agree to a program of this sort, and the Government was willing to defer prosecution on condition that the bail terms be continued. While discussions between the Government and Blohm on the details of a deferred prosecution were taking place, the court postponed a hearing on Blohm's competence to stand trial. Finally, on August 2, 1983, Blohm informed this court that he had withdrawn his request for a deferred prosecution.
Vacations, trial commitments of counsel, the schedules of the doctors, and the resolution of the deferred prosecution proposal delayed the hearing on Blohm's competence until October 20, 1983. Testimony was heard from Drs. Goldstein and Portnow and from Blohm on that day and October 21 and 28. In the course of the hearing, Blohm indicated on the record that he and James Cohen ("Cohen"), who had until then been Blohm's court-appointed attorney, had an irreconcilable difference over Blohm's representation: Cohen recommended to Blohm that he seek a determination of incompetence to stand trial, and Blohm wished to proceed to trial. For this reason, Blohm asked that Cohen be removed as his counsel and that new counsel be appointed. Cohen also stated that the difference was irreconcilable. Pursuant to this request, the court appointed new counsel to represent Blohm. However, because of the question of Blohm's capacity to make decisions in his own best interest, the court appointed Cohen as an amicus curiae pursuant to the procedure established in Seidner v. United States, 104 U.S. App. D.C. 214, 260 F.2d 732 (D.C. Cir. 1958)
under the direction not to reveal or employ any confidences he had received from Blohm, a difficult and challenging assignment which Cohen undertook as an officer of the court and in what he conceived to be his former client's best interest.
II. The Standard under 18 U.S.C. § 4244.
Under 18 U.S.C. § 4244, a defendant is incompetent to stand trial if he is "so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense". Under the still-controlling Supreme Court interpretation of this language, see Brown v. Warden, 682 F.2d 348, 351 (2d Cir.), cert. denied, 459 U.S. 991, 103 S. Ct. 349, 74 L. Ed. 2d 388 (1982), 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 a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960). See also Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975).
All counsel agree as to the applicability of the Dusky standard. All concede, and I concur, that Blohm has a factual understanding of the proceedings against him, including a factual understanding of the applicable statutes and procedures. It is the determination of rationality about which the dispute centers. I conclude that the rationality to be demonstrated is that of an objective rationality, what would be regarded as rational to the average person, not to the defendant, not to the psychiatrists, who in this instance considered Blohm competent because his perspective and his acts were consistent with his felt need, his delusion. I conclude that the technical standards which the psychiatrists considered were entirely appropriate for their professional purpose but failed to include the sense of rationality as it is commonly understood. Hence, in my view, the Government and Blohm have urged upon me too narrow a standard. "Rational," as used in the cases, must not be devoid of common understanding, and it is the court to which the society has assigned the decisional task, not the medical ...