McMURTEY v. RYAN ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASPER N. MCMURTREY, III, 
Petitioner-Appellee, No. 03-99002
v.  D.C. No.
CV-88-00844-TUC-
CHARLES L. RYAN, Warden, WFN
Respondent-Appellant.

JASPER N. MCMURTREY, III,  No. 03-99009
Petitioner-Appellant, D.C. No.
v.  CV-88-00844-TUC-
CHARLES L. RYAN, Warden, WFN
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Wm. Fremming Nielsen, Senior Judge, Presiding
Argued and Submitted
March 21, 2006—San Francisco, California
Filed August 21, 2008
Before: Harry Pregerson, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Pregerson
11215
11218 MCMURTREY v. RYAN
COUNSEL
Gregory Kuykendall, Kuykendall & Associates; Natman
Schaye, Chandler & Udall, LLP, for the petitioner.
Terry Goddard, Attorney General; Kent E. Cattani, Chief
Counsel, Capital Litigation Section; Patricia A. Nigro, Assis-
tant Attorney General, Arizona Attorney General’s Office, for
the respondent.
OPINION
PREGERSON, Circuit Judge:
The State of Arizona appeals the federal district court’s
grant of habeas corpus relief to Petitioner Jasper N.
MCMURTREY v. RYAN 11219
McMurtrey, III, in this pre-AEDPA case.1 The district court
concluded that McMurtrey’s due process rights were violated
when the Arizona trial court failed to hold a hearing to deter-
mine whether McMurtrey was competent to stand trial,
despite considerable evidence suggesting that he was not. See
Pate v. Robinson, 383 U.S. 375, 385 (1966).2 This violation,
the court held, was not cured by a subsequent hearing. The
federal district court also found that McMurtrey’s trial coun-
sel rendered ineffective assistance because his failure to
renew a request for a competency hearing regarding
McMurtrey’s competency at the time of trial was objectively
unreasonable. McMurtrey cross-appeals the federal district
court’s denial of nine other due process and ineffective assis-
tance claims.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
For the reasons set forth below, we affirm the district court’s
finding that there was substantial evidence, particularly by the
time of sentencing, to suggest that McMurtrey’s due process
rights were violated when the state trial court failed to hold
1
AEDPA is the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214, which altered the role of the federal
habeas court in reviewing state prisoner applications brought under 28
U.S.C. § 2254. See Bell v. Cone, 535 U.S. 685, 693 (2002). Under
AEDPA, the federal court may reject a state court’s judgment only if it
was “contrary to” or “involved an unreasonable application of” clearly
established federal law as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). However, AEDPA does not apply to the merits of
petitions filed before April 24, 1996, the effective date of the Act. See
Caswell v. Calderon, 363 F.3d 832, 836 n.3 (9th Cir. 2004). Because
McMurtrey filed his first federal habeas petition in 1988, before AEDPA’s
1996 enactment, AEDPA does not affect our analysis.
2
The purpose of a competency hearing is to determine whether the
defendant is able (1) to understand the nature of the present criminal pro-
ceedings, and (2) to assist counsel in a rational manner. People v. Master-
son, 8 Cal. 4th 965, 971 (1994); see also Godinez v. Moran, 509 U.S. 389,
401 n.12 (1993) (“The focus of a competency inquiry is the defendant’s
mental capacity; the question is whether he has the ability to understand
the proceedings.”).
11220 MCMURTREY v. RYAN
a hearing to determine whether he was competent to stand
trial and be sentenced. We also hold that this violation was
not cured by a subsequent hearing. Because we affirm the fed-
eral district court on this ground, violation of due process, we
do not reach the district court’s decision on McMurtrey’s
claim of ineffective assistance of counsel. We also do not
reach McMurtrey’s cross-appeal of his nine due process and
ineffective assistance claims.
FACTUAL AND PROCEDURAL HISTORY
I. Factual Background
Early in the morning on August 10, 1979, McMurtrey shot
and killed two men and seriously injured a third man in an
incident at the Ranch House Bar in Tucson, Arizona.
McMurtrey and the three victims had apparently engaged in
loud conversations about their toughness and had arm-
wrestled, chewed glass, and shown off their tattoos.
McMurtrey eventually went out to the parking lot and
obtained a revolver from an acquaintance. He then returned to
the bar, approached the victims, and fired the gun until it was
empty. McMurtrey fled the state. In August 1980, approxi-
mately one year later, McMurtrey was arrested in Topeka,
Kansas, and returned to Arizona for prosecution in the Ranch
House shooting.
II. Procedural History
A. State Court Proceedings
At trial, which began in July 1981, represented by attorney
Bertram Polis and his associate counsel Henri Sadacca,
McMurtrey did not deny shooting the victims. Rather,
McMurtrey pleaded the defenses of self-defense, lack of pre-
meditation, and insanity. On July 13, 1981, the jury returned
a verdict of guilty on two counts of premeditated first degree
murder and one count of attempted first degree murder. Pima
MCMURTREY v. RYAN 11221
County Superior Court Judge Jack Arnold found no mitigat-
ing factors and found that the fact that McMurtrey had created
a grave risk of death to persons other than the intended vic-
tims was an aggravating factor. In August 1981, Judge Arnold
sentenced McMurtrey to death for both murders and to a
twenty-one-year term of imprisonment for the attempted mur-
der conviction.
The Arizona Supreme Court affirmed the convictions and
the sentence for attempted murder but vacated the death sen-
tences, finding that the state trial court may not have consid-
ered fully all of McMurtrey’s mitigation evidence. See State
v. McMurtrey, 664 P.2d 637, 645-46 (Ariz. 1983). After a
new sentencing hearing, Judge Arnold resentenced
McMurtrey to death. The Arizona Supreme Court, however,
again vacated the death sentence and remanded for resentenc-
ing on account of the trial court’s misapplication of the “be-
yond a reasonable doubt” standard to McMurtrey’s mitigation
evidence. See State v. McMurtrey, 691 P.2d 1099, 1100-01
(Ariz. 1984). Judge Arnold held a third sentencing hearing
and again imposed the death sentences. This time, in 1986,
the Arizona Supreme Court affirmed the death sentences. See
State v. McMurtrey, 726 P.2d 202 (Ariz. 1986).
In July 1987 McMurtrey filed a petition for Post-
Conviction Relief (“PCR”) and, with new counsel, an
amended petition in September 1987, asserting, inter alia, (1)
that Polis provided ineffective assistance in failing to request
a timely competency hearing, and (2) that McMurtrey had
been mentally incapable of assisting Polis during trial.
Attached to the petition was an affidavit from Sadacca, Polis’s
associate counsel, stating that during the trial McMurtrey was
either heavily sedated or extremely agitated. Sadacca noted
that McMurtrey’s alternating states of sedation and agitation
made it difficult for McMurtrey (1) to assist with the prepara-
tion of his defense, and (2) to concentrate during pre-trial
interviews or courtroom proceedings. On February 26, 1988,
Judge Arnold denied the petition, finding that all of the issues
11222 MCMURTREY v. RYAN
were barred because McMurtrey could have raised them on
direct appeal or were otherwise precluded. Judge Arnold
denied the request for rehearing in April 1988. In September
1988, the Arizona Supreme Court denied review.
In October 1989, McMurtrey filed a second petition for
PCR in state court. McMurtrey contended that the jail’s
administration of medication had rendered him mentally
incompetent at trial. Affidavits from McMurtrey and Polis
were attached to the PCR petition. McMurtrey’s affidavit
stated that he had been given “heavy doses of a great variety
of drugs before, during, and after” trial that prevented him
from being able to think clearly or to assist in his defense.
Polis’s affidavit stated that he witnessed irrational displays of
anger and extreme mood swings and that McMurtrey’s mental
state worsened as the trial proceeded. On June 20, 1990, the
state trial court dismissed McMurtrey’s second amended peti-
tion for PCR on procedural grounds. In April 1991, the Ari-
zona Supreme Court denied review and in May 1991 denied
McMurtrey’s motion to reconsider. McMurtrey filed a third
petition for PCR about victim impact statements that was
denied in November 1991; review was denied in May 1992.
B. Federal Habeas Proceedings
McMurtrey filed a habeas petition in federal district court
on December 19, 1988. The district court stayed the proceed-
ings in September 1989 to allow him to exhaust the previ-
ously mentioned ineffective assistance of counsel and
competency claims contained in his second petition for PCR
in state court. In May 1991, after McMurtrey’s second peti-
tion for PCR was dismissed, the federal district court lifted
the stay and allowed him to file an amended habeas petition.
McMurtrey filed an amended petition in August 1991 raising
twenty-six claims. McMurtrey filed a second amended peti-
tion in May 1992.
Following oral argument on preclusion issues in February
1994, in March 1994 District Judge Richard M. Bilby con-
MCMURTREY v. RYAN 11223
cluded that, under Arizona law, the state trial court had erro-
neously precluded the ineffective assistance claim raised in
McMurtrey’s first petition for PCR without providing an evi-
dentiary hearing or ruling on the merits. Judge Bilby therefore
stayed habeas proceedings and remanded so that the state
court could address the merits of the ineffective assistance
claim in McMurtrey’s first petition for PCR.
In November and December 1994, Judge Arnold conducted
a six-day evidentiary hearing on that and other claims. In May
1995, Judge Arnold denied relief, finding that McMurtrey had
been mentally competent for trial and that the performance of
McMurtrey’s counsel had not been deficient. McMurtrey peti-
tioned for review in November 1995. Again, the Arizona
Supreme Court denied review of the third petition for PCR.
In May 1997, the Arizona Supreme Court denied review of
McMurtrey’s fourth petition for PCR, filed in April 1996 and
based on the use of a hypnotized witness, and denied review
of Judge Arnold’s evidentiary ruling.
On November 18, 1997, the federal district court lifted its
stay and allowed McMurtrey to file a third amended habeas
petition raising forty-three claims. McMurtrey filed a fourth
petition in May 1998 enhancing one of his claims. Judge
Bilby died on August 11, 1998, and the case was reassigned
to Judge William F. Nielsen on September 28, 1998.3
In an order entered March 6, 2000, addressing
McMurtrey’s fourth amended petition, the federal district
court ruled that portions of twenty-eight of McMurtrey’s
fourty-four habeas claims were procedurally defaulted and
that McMurtrey established neither (1) cause and prejudice,
nor (2) a fundamental miscarriage of justice to excuse the
defaults. The district court directed further briefing on the
3
Judge Nielsen, a district judge from the Eastern District of Washington,
appears to have been sitting by designation in Arizona district court when
he received this case.
11224 MCMURTREY v. RYAN
merits of the remaining claims, which included the claim that
the state trial court erred in not ordering an evidentiary hear-
ing on McMurtrey’s competence to stand trial.
On March 4, 2003, in a thorough fifty-three-page memo-
randum and order, the district court granted habeas relief to
McMurtrey. McMurtrey v. Ryan, No. 88-844 (D. Ariz. Mar.
4, 2003). The district court found that substantial evidence
before the trial court “was sufficient to raise a reasonable
doubt as to [McMurtrey’s] competency to stand trial” such
that the trial court should have ordered a hearing on the issue,
a violation not cured by the 1994 hearing, and that counsel
had provided ineffective assistance with respect to this issue.
The district court denied the remainder of McMurtrey’s guilt-
phase claims, finding that they lacked merit, but did not rule
on the due process challenge to the question of McMurtrey’s
actual incompetence. Finally, the district court denied
McMurtrey’s sentencing-related claims without prejudice.
The court deemed its order a “conditional” writ of habeas cor-
pus. It did not require that McMurtrey be released from cus-
tody outright; instead, by granting the petition, the district
court delayed McMurtrey’s release from custody for 180 days
to give the State an opportunity to initiate new trial proceed-
ings.
The State filed a timely notice of appeal, but inadvertently
failed to request a stay of the judgment under Federal Rule of
Civil Procedure 62. In September 2003 McMurtrey moved for
a dismissal of the prosecution with prejudice or his release
with conditions and pending appeal. In October 2003 the state
made an untimely motion for a stay of the enforcement of the
court’s judgment. The district court held a hearing in Decem-
ber 2003 and concluded that release was appropriate. The
court found that: (1) the State failed to present evidence that
McMurtrey was a danger to the community; (2) the State’s
interests would not be harmed irreparably absent a stay; (3)
the State’s opening appellate brief did not demonstrate a like-
lihood of success; and (4) McMurtrey would suffer substantial
MCMURTREY v. RYAN 11225
injury each day of continued incarceration. The district court
also held that the State’s inaction was not sufficient to warrant
a finding that the State be barred from retrying McMurtrey.
McMurtrey was released that same month.
C. The Appeal and Cross-Appeal
The State appeals the district court’s decision, contending
that: (1) the district court erred by rejecting Judge Arnold’s
1994 finding that McMurtrey failed to prove that he was
incompetent, and (2) McMurtrey necessarily failed to prove
ineffective assistance of counsel because McMurtrey failed to
prove that he was incompetent to stand trial. McMurtrey
cross-appealed, presenting nine challenges to the district
court’s decision.
STANDARD OF REVIEW
The district court’s decision to grant or deny a 28 U.S.C.
§ 2254 habeas petition is reviewed de novo. See Miles v.
Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). The district
court’s findings of fact are reviewed for clear error. See
McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir. 2003)
(noting that the standard is “significantly deferential”). We
owe less deference to state court factual findings under pre-
AEDPA law, but “we must still presume such findings to be
correct unless they are ‘not fairly supported by the record.’ ”
Bean v. Calderon, 163 F.3d 1073, 1087 (9th Cir. 1998) (quot-
ing 28 U.S.C. § 2254(d)(8) (1996)). In contrast to cases in
which a habeas petition was filed after the enactment of
AEDPA, here we need not defer to state court rulings on
questions of law “since the federal court is not formally
reviewing a judgment, but is determining whether the prisoner
is ‘in custody in violation of the Constitution or laws or trea-
ties of the United States.’ ” Lambrix v. Singletary, 520 U.S.
518, 523 (1997) (quoting 28 U.S.C § 2254(a)).4 That is, “we
4
See supra note 1.
11226 MCMURTREY v. RYAN
‘simply resolve the legal issue on the merits, under the ordi-
nary rules.’ ” Summerlin v. Schriro, 427 F.3d 623, 628-29
(9th Cir. 2005) (en banc) (citation omitted).
ANALYSIS
McMurtrey claims that his procedural due process rights
were violated by the state trial court’s failure to conduct a
competency hearing. The federal district court found that the
evidence before the state trial court raised a reasonable doubt
as to McMurtrey’s competence to stand trial and, therefore,
that the state trial court should have ordered a competency
hearing.
[1] In Pate, the Supreme Court held that a state court must
follow adequate procedures to protect against the conviction
of a criminal defendant who is incompetent to stand trial. 383
U.S. at 386. “To be competent to stand trial, a defendant must
demonstrate an ability ‘to consult with his lawyer with a rea-
sonable degree of rational understanding’ and a ‘rational as
well as factual understanding of the proceedings against
him.’ ” Douglas v. Woodford, 316 F.3d 1079, 1094 (9th Cir.
2003) (quoting Godinez, 509 U.S. at 396 (internal quotations
and citation omitted)). When “the evidence raises a ‘bona fide
doubt’ ” about the defendant’s competence to stand trial, a
trial judge must sua sponte conduct an evidentiary hearing.
Pate, 383 U.S. at 385; see also Odle v. Woodford, 238 F.3d
1084, 1087 (9th Cir. 2001) (same).
Due process requires a state court to hold a hearing where
substantial evidence before the court “indicate[s] the need for
further inquiry” into the defendant’s competency. Drope v.
Missouri, 420 U.S. 162, 180 (1975). Because there are no
“fixed or immutable signs which invariably indicate the need
for further inquiry to determine fitness to proceed[,] the ques-
tion [of competency] is often a difficult one in which a wide
range of manifestations and subtle nuances are implicated.”
Id.; see also Williams v. Woodford, 384 F.3d 567, 604 (9th
MCMURTREY v. RYAN 11227
Cir. 2004) (“Although no particular facts signal a defendant’s
incompetence, suggestive evidence includes the defendant’s
demeanor before the trial judge, irrational behavior of the
defendant, and available medical evaluations of the defen-
dant’s competence to stand trial.”).
In reviewing whether a state trial judge should have con-
ducted a competency hearing, we may consider only the evi-
dence that was before the trial judge. See Williams v.
Woodford, 384 F.3d at 604. We therefore review the record
to determine whether the evidence before the state trial court
raised a “bona fide doubt” that McMurtrey was competent to
stand trial. See Pate, 383 U.S. at 385; de Kaplany v. Enomoto,
540 F.2d 975, 979 (9th Cir. 1976) (en banc). If a reasonable
judge would have had such a doubt, McMurtrey was entitled
to a competency hearing, and the failure to hold such a hear-
ing violated his right to due process. See Moran v. Godinez,
57 F.3d 690, 695 (9th Cir. 1994) (superseded on other
grounds by AEDPA).
For the reasons set forth below, we find that the evidence
available to Judge Arnold when McMurtrey was tried and
sentenced was sufficient to raise a reasonable doubt as to
McMurtrey’s competency to stand trial and be sentenced.
Accordingly, we affirm the decision of the federal district
court that McMurtrey’s right to due process of law was vio-
lated by the state trial court’s failure to conduct a hearing on
McMurtrey’s competence to stand trial.
I. There Was Sufficient Evidence Before the State Trial
Court to Raise a Reasonable Doubt as to McMurtrey’s
Competency to Stand Trial
Evidence concerning McMurtrey’s competence to stand
trial included evidence about McMurtrey’s medications, as
well as reports and testimony from doctors and prison offi-
cials presented to the trial court at relevant stages of the pro-
ceedings. We first provide an overview of the evidence before
11228 MCMURTREY v. RYAN
the Arizona court pre-trial and during trial, pre-sentencing,
and sentencing. We then explain why this evidence is suffi-
cient to raise a reasonable doubt as to McMurtrey’s compe-
tence.
A. Evidence at Pre-Trial
On December 9, 1980, eight months before trial, attorney
Polis filed a motion for a competency examination and a hear-
ing to determine McMurtrey’s competency to stand trial under
Arizona Rule of Criminal Procedure Rule 11 (“Rule 11”).
Polis requested that the examination be conducted in a “hospi-
tal atmosphere” so that McMurtrey could be examined in a
drug-free state and subjected to intensive psychiatric and neu-
rological tests to determine the extent of his medical prob-
lems. The motion, which the State opposed, stated that
McMurtrey could not adequately assist counsel because of
McMurtrey’s poor memory about the crime, the court’s
administration of anti-psychotic drugs, McMurtrey’s history
of mental health problems, and his need for medication.
Attached to the motion was an excerpt of a medical report
showing that McMurtrey had been admitted to the psychiatric
unit of a hospital at age fifteen.
McMurtrey’s motion was supported by an examination
done by Dr. David Gurland, a psychiatrist retained by
McMurtrey. In a letter dated November 7, 1980, Dr. Gurland
noted that McMurtrey had a history of head injuries and men-
tal health problems, along with a longstanding history of psy-
chological problems that stemmed from unresolved issues
surrounding McMurtrey’s father’s fatal shooting of
McMurtrey’s mother and her lover when McMurtrey was
seven years old. Dr. Gurland opined that McMurtrey, who
began suffering seizures as an adolescent, had a “marginal”
adjustment to high school, “with a schizoid personality.” Dr.
Gurland also expressed concern about the effects of
McMurtrey’s numerous motorcycle accidents, which had
caused head trauma. Dr. Gurland questioned the Pima County
MCMURTREY v. RYAN 11229
Prison’s decision to prescribe Thorazine and Atarax, conclud-
ing that the medications, while in some cases capable of pro-
viding effective treatment for seizures and anxiety, were
potentially harmful to McMurtrey’s damaged liver. Dr. Gur-
land stated that, because of McMurtrey’s mental health issues,
he did not believe that McMurtrey understood at the time of
the crime the difference between right and wrong or the sig-
nificance of the Ranch House Bar incident. He described
McMurtrey’s mental state as fragile and was concerned that,
with the stress of the upcoming trial, McMurtrey’s mental
state would deteriorate further without proper medication. Dr.
Gurland recommended that McMurtrey be hospitalized as
soon as possible so that he could receive appropriate medica-
tion, have his seizure history evaluated, have an EEG and a
CAT scan because of the seizures, and receive tests to investi-
gate the functioning of his liver. He concluded that a Rule 11
exam was warranted.
Superior Court Judge William Druke, who handled such
motions, took the competency examination motion under
advisement and ordered Polis to arrange for McMurtrey to be
examined by the Court Clinic to determine if reasonable
grounds existed to hold a Rule 11 evaluation. As a result,
court psychologist Cynthia Ginnetti met with McMurtrey on
January 13, 1981. In a letter to the court, Dr. Ginnetti stated
that McMurtrey “demonstrate[d] a good understanding of the
charges against him and of the legal process generally.” How-
ever, Dr. Ginnetti expressed concern over McMurtrey’s “spot-
ty” memory about the crime, noting that “this does impair his
ability to assist counsel, particularly if a defense of self-
defense is pursued.” Dr. Ginnetti recommended EEG testing
to check for temporal lobe damage.
Polis hired psychiatrist Leonardo Garcia-Bunuel to meet
with McMurtrey in January 1981 and review his records.
McMurtrey told Dr. Garcia-Bunuel that he had “experienc[ed]
auditory and visual hallucinations since age fifteen.” When
asked about the incident at the Ranch House Bar, McMurtrey
11230 MCMURTREY v. RYAN
stated that he remembered men at the bar threatening to slice
the “one percent” tattoo off of his arm.5 McMurtrey recalled
that the men grabbed him and that McMurtrey had pulled a
gun on the men. He remembered seeing himself shoot the
gun, as though he were a bystander, unable to do anything. On
several occasions during the interview, McMurtrey rocked
back and forth in his chair. Dr. Garcia-Bunuel noted that such
behavior is a common side effect of certain drugs like Atarax
and Thorazine, and that he, like Dr. Gurland, questioned
whether McMurtrey should be receiving those medications.
To determine if McMurtrey was faking some of his symp-
toms, Dr. Garcia-Bunuel led him into some “traps.” The doc-
tor reported that McMurtrey did not fall victim to any of
them. In fact, Dr. Garcia-Bunuel stated that he felt “very
strongly” that McMurtrey “is not faking in any way, that he
is, and has been, honest throughout.” Dr. Garcia-Bunuel con-
curred in Dr. Gurland’s evaluation and recommended that
McMurtrey undergo a complete neurological evaluation,
including EEG testing, a brain scan, and a skull examination.
Based on these reports, Polis filed a motion requesting a
neurological examination, which Judge Druke granted. The
tests revealed no abnormalities. On February 4, 1981, neurol-
ogist Harvey Buchsbaum met with McMurtrey. In a letter to
the Pima Deputy County Attorney, Dr. Buchsbaum dis-
counted any concerns of significant neurological damage,
concluding that the tests revealed no evidence of neurological
disease and that McMurtrey’s action in the bar “fits better
with a rage attack instead of a psychomotor seizure.” After
reviewing Dr. Buchsbaum’s report, Judge Druke decided that
there was no need to do anything further, and no testimony
5
As the district court noted, the term “one percenter” is usually associ-
ated with membership in the Hell’s Angels motorcycle gang, and the name
is derived from a statement issued by the American Motorcycle Associa-
tion that ninety-nine percent of motorcyclists are good people enjoying a
clean sport and that one percent are outlaw bikers.
MCMURTREY v. RYAN 11231
was taken. At Polis’s urging, the court agreed to review the
reports offered by the defense, but on February 20, 1981,
Judge Druke stated that he was “unable to find reasonable
grounds to believe the defendant is incompetent to stand trial”
and summarily denied the Rule 11 motion and referred the
case back to Judge Arnold.
On March 6, 1981, Dr. Gurland wrote to Polis to inform
him that McMurtrey had been moved to the psychiatric unit
of a local hospital because of “suicidal ideation and a psy-
chotic breakdown.”6 Dr. Gurland stated that McMurtrey was
experiencing memory and anxiety problems and that, as a
result, McMurtrey was incompetent to stand trial. He further
noted that McMurtrey was able to understand and follow the
court proceedings, and would “not be incompetent in those
areas.” Dr. Gurland recommended that McMurtrey receive
Valium to alleviate his “high anxiety level.” The same month,
Dr. Gurland again examined McMurtrey. Dr. Gurland diag-
nosed McMurtrey as exhibiting mixed neuroses, depression,
and anxiety, and noted that stress was the major factor trigger-
ing McMurtrey’s mental health problems.
On March 13, 1981, four months prior to trial, McMurtrey
was examined for an hour by Dr. John LaWall, the State’s pri-
mary psychological expert in this case. McMurtrey told Dr.
LaWall that he had suffered auditory and visual hallucinations
since the age of fifteen and that he had been hospitalized for
these hallucinations. McMurtrey also explained that he occa-
sionally saw people and weapons that were not really there
and that since age fifteen he has experienced blackouts—
“periods in which he loses touch with his surroundings but
apparently does not lose motor control.” McMurtrey admitted
that he had used drugs in the past, including amphetamines
and LSD, but told Dr. LaWall that his current illicit drug use
was minimal. McMurtrey told Dr. LaWall about his motorcy-
6
The record does not reveal whether Polis submitted this letter to the
trial court.
11232 MCMURTREY v. RYAN
cling and his affiliation with the “one percenters.” McMurtrey
mentioned that he was a frequent visitor to the Ranch House
Bar and that, although he had a dim recollection of the events
of August 10, 1979, which Dr. LaWall termed “partial alleged
amnesia,” McMurtrey did remember drinking approximately
a fifth of whisky and possibly taking a barbiturate. Dr. LaWall
noted that McMurtrey was taking Dilantin,7 Elavil,8 and
Librium.9
Based on his one-hour interview with McMurtrey, and a
review of the reports discussed above, Dr. LaWall found it
“difficult to diagnose any mental disorder.” He concluded that
McMurtrey “was oriented to time, place and person,” that he
did not suffer from epilepsy or partial seizures, but that, in his
opinion, “[t]here are a number of elements in his history
which tend to suggest a variety of disorders” and that
McMurtrey might suffer from “atypical dissociative disor-
der.” He thought that at the time of the crimes McMurtrey
understood his actions and the difference between right and
wrong. Finally, Dr. LaWall stated that, in his opinion,
McMurtrey was competent to stand trial because he was capa-
ble of understanding the nature of the proceedings and
because he was able to assist in his own defense.
7
Dilantin is an anti-epileptic drug used to treat grand mal seizures. See
Dilantin, Physician’s Desk Reference website, available at http://
www.pdrhealth.com. The side effects of Dilantin may include decreased
coordination, involuntary eye movement, mental confusion, and slurred
speech. Id.8
Elavil, an antidepressant, was prescribed by Dr. Santiago, who treated
McMurtrey when he was hospitalized. Patients taking Elavil may experi-
ence drowsiness, dizziness, blurred vision, sedation, and confusion. See
Elavil, Physician’s Desk Reference website, available at
http://www.pdrhealth.com.
9
Librium is a sedative used to treat anxiety. See Physician’s Desk Refer-
ence 3299 (2008). It may interfere with mental alertness and cause drowsi-
ness, confusion, and nausea. Id.MCMURTREY v. RYAN 11233
B. Evidence at Trial
The record shows that, during McMurtrey’s trial, which
began on July 1, 1981, and lasted for seven days, McMurtrey
was ill on at least three occasions. On the third day of trial,
attorney Polis complained to the court that McMurtrey’s med-
ication was responsible for McMurtrey “getting ill constantly
in the courtroom.” Judge Arnold called for a recess on
account of the nausea. Polis also alerted the court to
McMurtrey’s nausea on each of the final two days of the trial.
At trial, Dr. LaWall and Dr. Gurland testified as to their
March examinations of McMurtrey. Dr. Gurland, who exam-
ined McMurtrey in November 1980 and again in March 1981,
testified that McMurtrey was treated with Thorazine. He cal-
led Thorazine “a major tranquilizer,” “used for more signifi-
cant degrees of agitation or emotional upset.” Dr. Gurland
testified that he was uncertain how long McMurtrey had been
receiving Thorazine, but that he believed that McMurtrey had
been medicated with it by jail physicians “for some time.” Dr.
Gurland noted that in November 1980 McMurtrey was taking
approximately double the recommended dosage of Thorazine;
he stated that the average person “would be laid out for the
next seven or eight hours” if given such a dose. Dr. Gurland
also noted that McMurtrey had been prescribed Dilantin,
Elavil, Atarax, and Librium during his incarceration. Dr. Gur-
land testified that the amount of Librium prescribed to
McMurtrey “was five times the addictive dose.”10
Dr. José Santiago, who treated McMurtrey during his one-
week hospitalization, testified about McMurtrey’s current
mental state to provide corroborative evidence in support of
McMurtrey’s defense that the shooting was a product of his
chronic insanity or mental illness. He diagnosed McMurtrey
10
As for Dr. Gurland’s March 6, 1981, letter discussing McMurtrey’s
one-week hospitalization, it is unclear from the record whether Polis sub-
mitted this letter to the court.
11234 MCMURTREY v. RYAN
as suffering from, among other conditions, a major depressive
disorder that impaired his ability to control his emotions. Dr.
Santiago explained his diagnosis as follows:
Well, what I mean is that because of the illness,
because of the difficulty with the emotions, the
patient is unable to interpret what he sees and what
happens around him in a logical, coherent fashion.
Now remember that I made that observation in con-
nection with a thought disorder. Mr. McMurtrey
does not have a thought disorder, so he is able to, in
essence, process the cues around him. In the emo-
tional disorder which is what Mr. McMurtrey has,
what he is unable to control is his emotions and his
emotions[,] in turn, impair gravely on his ability to
function when he is under that particular acute phase
of the illness.
Dr. Santiago stated that fear and “stress will provoke a major
depressive disorder episode” and that McMurtrey’s mood dis-
order was evidence of mental illness. He further noted that
some people who suffer from a depressive disorder may not
know right from wrong. When pushed by the prosecutor to
express his opinion whether McMurtrey was sane on the night
of the incident, Dr. Santiago stated, “If you want me to
hypothesize, the fact that [McMurtrey] has a mental illness
would support the possibility that he might be insane at the
time of the offense.” Dr. Santiago described the medications
administered to McMurtrey while in jail, which included
Thorazine, an anti-psychotic drug, Dalmane, which he called
a “sedative hypnotic drug,”11 and Chloral Hydrate, a sedative.
He also described the medications administered during
McMurtrey’s hospitalization, which included Thorazine and
Elavil, an antidepressant.
11
Dalmane is used as a hypnotic agent to treat insomnia. See Physician’s
Desk Reference 3285 (2008). It can interfere with mental alertness and
cause dizziness, drowsiness, nausea, nervousness, irritability, slurred
speech, restlessness, and hallucinations. Id.MCMURTREY v. RYAN 11235
C. Evidence in Pre-Sentencing Report
Before sentencing, the state trial court’s probation depart-
ment obtained information concerning McMurtrey’s incarcer-
ation at the county jail. A form12 completed by a nurse
indicated that McMurtrey was taking Phenobarbital, Dalmane,
and Ativan.13 The court also received various incident reports
from corrections officers. These incident reports indicated that
between January and July 1981, McMurtrey set fires, passed
out, threw food, fought with other inmates, and assaulted a
corrections officer. Jail personnel modified or reduced his
medications before McMurtrey was seen by a doctor.
McMurtrey also injured himself on three separate occasions.
On February 26, 1981, he was found in his cell with blood
dripping from his arms and a pool of blood at his feet. Shortly
thereafter, McMurtrey was hospitalized. On July 16, 1981,
three days after being convicted, McMurtrey smashed his
head against a window. Nine days later, on July 25, 1981, he
smashed his head against a door.
The probation department also referred McMurtrey to psy-
chiatric social worker Carolyn Ford, who examined
12
This form is all that is available because McMurtrey’s jail medical
records and medical administration chart were apparently destroyed. The
jail progress notes described in Part II of the opinion were not presented
to the trial court until the 1994 evidentiary hearing. Accordingly, they are
not relevant to the consideration of whether a competency hearing should
have been conducted. See Williams v. Woodford, 384 F.3d 567, 604 (9th
Cir. 2004).
13
Ativan is used to treat short term anxiety disorders. See Ativan, Physi-
cian’s Desk Reference website, available at http://www.pdrhealth.com. It
may cause dizziness, memory problems, sedation, transient amnesia,
unsteadiness, and weakness, and it is not recommended if “full mental
alertness” is required. Id. The drug’s description warns that it is “espe-
cially important” to check with a doctor before combining Ativan with
other sedative-type medications, such as Valium. Id. McMurtrey was pre-
scribed as much as twelve milligrams in one day, in excess of the two to
six milligram recommended dosage. An overdose of Ativan may result in
confusion, drowsiness, low blood pressure, and sluggishness. Id.11236 MCMURTREY v. RYAN
McMurtrey on July 28, 1981. According to Ford’s evaluation,
McMurtrey spoke in an “extremely loud, rambling, tangential,
at times philosophical, and at times, crude manner,” and his
behavior was “highly agitated and impulsive,” interspersed
with periods during which he appeared to be sleepy. Ford was
not able to evaluate credibly McMurtrey because she found
that his behavior was “purposefully manipulative and cun-
ning, designed to intimidate, harass, and in general keep peo-
ple away from him.”
Prior to sentencing, McMurtrey moved for a new trial. In
the motion, he argued that the change in his medication dur-
ing trial prevented him from receiving a fair trial. Specifi-
cally, the motion stated:
As the evidence adduced at his trial demonstrates,
Mr. McMurtrey had severe mental health problems.
These problems were aggravated during times of
stress, and were treated by psychoactive drugs dur-
ing the entire time of his incarceration and trial.
These drugs included Thorazine, Ativan, Valium,
Elavil, Dilantin as well as others. In the middle of
trial Mr. McMurtrey’s medication was changed and
his already unstable mental health further declined.
This additional instability, occasioned by the change
in medication, in turn adversely affected his demea-
nor at trial until, on the last day, he was essentially
on the verge of a nervous breakdown. This change
in demeanor, it is Mr. McMurtrey’s contention, oper-
ated to deny him a fair trial as Constitutionally guar-
anteed because the jury viewed a man in “a chemical
straight jacket.”
The trial judge denied the motion in a two-page minute order.
MCMURTREY v. RYAN 11237
D. Evidence at Sentencing
On August 28, 1981, the day of sentencing, attorney Polis
drew the court’s attention to McMurtrey’s one-page patient
order sheet that listed the variety and quantity of drugs pre-
scribed to McMurtrey before and during the trial. This patient
order sheet made clear that, during trial, McMurtrey was pre-
scribed Valium,14 Ativan, Librium, and Dalmane.15 The fol-
lowing conversation took place between the court and
attorney Polis:
Judge: What import does the medical records
and change in medication have on the
defense’s position in this case? You
see, it puts me sort of at a disadvan-
tage to have this handed to me the day
of sentencing.
Polis: I understand that. Just makes the
record complete with respect to what
medication he received in the jail and
the changes in it. If the Court would
review that, you would see —
Judge: I’m not a doctor. I really wouldn’t
know what it meant if I reviewed it. A
change in medication means nothing
without some sort of expert to testify
as to what effect, if any, it would have
14
Valium is used to treat anxiety disorders. See Physician’s Desk Refer-
ence at 2765. Use of Valium may cause drowsiness, fatigue, confusion,
depression, blurred vision, and rage, and may interfere with mental alert-
ness. Id.15
These four medications are classified as benzodiazepines, a family of
psychoactive compounds used to treat anti-anxiety disorders. See Sted-
man’s Medical Dictionary 198 (26th ed. 1995). Benzodiazepines are
highly addictive drugs that commonly interfere with memory, ability to
concentrate, and intellectual function.
11238 MCMURTREY v. RYAN
on the defendant’s position. All I can
say [is] I observed Mr. McMurtrey all
during the course of the trial and the
only opinion I have is that he didn’t
appear to be under the influence of
any drugs to the extent that it would
deprive him of his ability to be aware
of what was going on.
At the end of the sentencing hearing, the following exchange
took place:
Judge: Mr. McMurtrey, I haven’t heard from
you in regard to the position you are
in. Do you have anything to say to the
Court before sentence is imposed?
McMurtrey: Sir, I don’t know if I’m speaking to
the Court when I speak, but I would
like to speak to the Creator, the Cre-
ator of this court and the Holy Cre-
ator, would that be all right?
Judge: I talk to Him all the time. So you go
right ahead.
McMurtrey: (Kneeling.) Sir, I’m speaking to You
in a voice at this time because I have
others around me that need to know
my thoughts. I ask that You give them
the wisdom to make Your correct
decision and the rest of us the strength
to hold that wisdom. Amen.
That is all I have sir.
The court then denied McMurtrey’s motion for post-trial
relief. In its minute order, the court stated: “The Court feels
MCMURTREY v. RYAN 11239
that there is no evidence whatsoever that Mr. McMurtrey’s
medical treatment at the jail had any effect on his ability to
defend himself. The Court observed Mr. McMurtrey during
the trial; he appeared alert and in control of himself . . . .”
Judge Arnold then sentenced McMurtrey to death plus
twenty-one years.
E. Analysis
We agree with the district court that the evidence before the
state trial court regarding McMurtrey’s behavior, medications,
and memory problems was sufficient to raise a reasonable
doubt as to McMurtrey’s ability to assist counsel, despite Dr.
LaWall’s testimony to the contrary. Moore v. United States,
464 F.2d 663, 666 (9th Cir. 1972) (holding that records show-
ing defendant’s history of mental illness and instability raised
reasonable doubt even though psychiatric report before his
guilty plea found him competent); see also Torres v. Prunty,
223 F.3d 1103, 1110 (9th Cir. 2000):
In the face of this evidence, and under the Pate stan-
dard for triggering a competency hearing, the modest
evidence of [the defendant’s] competence does not
fairly support the trial court’s conclusion that no
hearing was required. [A doctor’s] previous conclu-
sion that [the defendant] was competent to stand trial
does not obviate the need for a hearing. Nor does the
evidence that [the defendant] was able to assist his
attorney at trial in minor ways.
[2] The state trial court had before it a significant body of
evidence that McMurtrey received a wide variety of anti-
psychotic and anti-anxiety medications over the course of his
incarceration. By the time of sentencing, Judge Arnold had
been presented with evidence that McMurtrey was prescribed
Atarax, Ativan, Chloral Hydrate, Dalmane, Dilantin, Elavil,
Librium, Thorazine, and Valium. This evidence came in the
form of pre-trial reports from doctors, trial testimony, docu-
11240 MCMURTREY v. RYAN
ments in the pre-sentence report, and documents attached to
the motion for a new trial. The medications alone should have
raised concerns for Judge Arnold. See Moran v. Godinez, 972
F.2d 263, 265 (9th Cir. 1992), overruled on other grounds,
509 U.S. 389 (1993) (holding that the trial court’s failure to
inquire about the four psychiatric medications defendant was
taking, among other factors, raised reasonable doubt about
competence); Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir.
1997) (finding that state court’s failure to ask defendant
whether he had been taking his psychotropic medication
before accepting his guilty plea raised reasonable doubt about
defendant’s competence to plead guilty, and therefore compe-
tency hearing should have been held). When presented with
the evidence regarding McMurtrey’s medications at sentenc-
ing, however, Judge Arnold simply noted that he was not a
doctor and that, as such, he could not evaluate what the
effects of the medications might have been.16
[3] Other evidence presented at trial raised further doubts
about McMurtrey’s competence. The district court summa-
rized some of this evidence as follows:
The [state trial court] learned during trial that
McMurtrey was prescribed a variety of anti-anxiety
medications, had been hospitalized for a suicide
attempt, and suffered from a major depressive disor-
der that impaired his ability to control emotions. The
court also observed McMurtrey become repeatedly
physically ill during trial and, prior to sentencing,
received documentation of McMurtrey’s increas-
ingly volatile and aggressive behavior in jail. The
16
The State notes that, with the exception of a one-page record, there is
no way to know all of the medications that were actually prescribed and
in what dosages they were administered to McMurtrey. Certainly, a more
complete record regarding the dosages administered and their effect on
McMurtrey would be enlightening. As the district court noted, however,
“due in part to the trial court’s refusal to hold a post-trial hearing on com-
petency, a more complete record does not exist.”
MCMURTREY v. RYAN 11241
court was aware of counsel’s concern that
McMurtrey was on the verge of a nervous break-
down and operating in a “chemical straight jacket,”
as well as medical records documenting Valium
injections during trial to treat “extreme agitation.”
Finally, the court observed McMurtrey at sentencing
as he knelt to address the “Creator of this court” and
requested a “correct decision” without providing any
coherent statement concerning himself, the crime or
sentence.
We agree with the district court that this evidence raised a
reasonable doubt as to McMurtrey’s competence. The jail
incident reports presented to Judge Arnold in the presentence
report illustrating McMurtrey’s increasingly erratic and vola-
tile behavior were striking, especially alongside evidence that
McMurtrey was prescribed substantial doses of powerful and
potentially incompatible medication.
[4] We also agree with the district court that Dr. LaWall’s
pre-trial evaluation of McMurtrey is not dispositive evidence
that McMurtrey was competent at the time of trial. Dr. LaW-
all met with McMurtrey for one hour in March 1981. His
observations from a brief interview conducted four months
before trial cannot overcome a reasonable doubt concerning
defendant’s competence to stand trial. See Moore, 464 F.2d at
666 (“Once there is [evidence raising a reasonable doubt as to
the competency to stand trial] from any source, there is a
doubt that cannot be dispelled by resort to conflicting evi-
dence.”). Further, as the Supreme Court noted in Drope, 420
U.S. at 181, “Even when a defendant is competent at the com-
mencement of his trial, a trial court must always be alert to
circumstances suggesting a change that would render the
accused unable to meet the standards of competence to stand
trial.” Judge Arnold’s responsibility to be alert for changing
conditions is especially strong because the court was on
notice from Dr. Gurland that the stress brought about by trial
might cause McMurtrey’s mental state to further deteriorate.
11242 MCMURTREY v. RYAN
The time lag between Dr. LaWall’s examination and trial is
also particularly important because McMurtrey does not
allege a longstanding mental disease, but instead argues that
medications prescribed by prison medical personnel temporar-
ily undermined his competency.
Finally, Dr. LaWall’s conclusions are weakened because
they did not reflect consideration of the effect that
McMurtrey’s medications would have on his competence to
stand trial. See Moran, 972 F.2d at 268 (noting that expert’s
report was “all the weaker as an indication of [the petition-
er’s] competency to waive his constitutional rights because it
says nothing about the effects of any medication”).
[5] In sum, Dr. LaWall’s testimony did not overcome the
other evidence in the record about McMurtrey’s competence.
McMurtrey’s due process rights were therefore violated. See
James v. Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992)
(noting that “the trial of an incompetent defendant is per se
prejudicial”). We therefore affirm the district court’s conclu-
sion that because a bona fide doubt existed as to McMurtrey’s
competence to stand trial and be sentenced, a competency
hearing should have been conducted.
II. The State Trial Court’s Failure to Hold a Timely
Competency Hearing Is Not Cured by the 1994
Evidentiary Hearing
The State relies on Judge Arnold’s finding, after the 1994
evidentiary hearing, that McMurtrey failed to prove that he
was not competent to stand trial. As noted earlier, the 1994
hearing was conducted after the federal district court con-
cluded that Judge Arnold had erroneously precluded
McMurtrey’s ineffective assistance claim raised in his first
petition for PCR. At that hearing, McMurtrey argued (1) that
there had been a reasonable doubt as to his competency at
trial, and (2) that his counsel was ineffective for failing to
reassert the competency issue during trial.
MCMURTREY v. RYAN 11243
A. Evidence Presented at the 1994 Hearing
At the 1994 evidentiary hearing, McMurtrey presented the
testimony of attorney Polis, attorney Sadacca, psychologist
Dr. Joseph Geffen, jail guard Jeff Rogers, newspaper report-
ers Ben McNitt and Deborah Wyermann, and substance abuse
expert Dr. Andrew Weil, as well as jail progress notes for the
trial days. The state presented testimony from prosecutor Jim
Himelic, detective Leo Duffner, Dr. LaWall, and psychologist
Dr. Alexander Don.
1. Bertram Polis
Polis, who met with McMurtrey dozens of times prior to
trial, testified that McMurtrey’s behavior was very inconsis-
tent and that he was sometimes “uncommunicative.” One
month before trial, when Polis informed McMurtrey of the
State’s plea offer of twenty-one years for second degree mur-
der, McMurtrey stated that he would plead guilty only to
“poaching out of season.” Polis stated that he did not believe
that McMurtrey thought clearly about the plea offer or consid-
ered it in a rational fashion.
Polis testified that, as the trial approached, McMurtrey’s
mental state “deteriorated from the time of trial and continued
to deteriorate throughout the trial.” He testified that
McMurtrey’s demeanor fluctuated greatly during the trial, that
McMurtrey was often agitated, angry, uncommunicative, and
emotionally unstable, and that he had little memory of the
offense. Polis also testified that McMurtrey interfered with his
representation during trial, making verbal comments and
threats, writing illegible notes, whispering, and mumbling. “It
got to the point where I was more controlling Mr. McMurtrey
than I was having him assist me.” Polis saw McMurtrey
receive medication during recesses throughout the trial and
saw him get sick from them.
Polis also met with McMurtrey after trial and sentencing
when McMurtrey had been moved to a new prison. Polis testi-
11244 MCMURTREY v. RYAN
fied that McMurtrey “was like a different person” who was
“mentally stable,” “calm,” and “exhibited some clarity of
thought that I had never seen before in him.”
2. Henri Sadacca
Sadacca testified that he met with McMurtrey often prior to
trial, during trial, and throughout sentencing. In Sadacca’s
view, McMurtrey’s conduct was very inconsistent. According
to him, as the trial approached, McMurtrey’s behavior became
more extreme, and he often appeared “very agitated,” “vola-
tile,” or “heavily sedated.” Sadacca also stated that
McMurtrey often made strange and inappropriate comments.
Throughout the trial, Sadacca witnessed jail personnel—not
medical professionals—administer medication to McMurtrey
while in the courtroom. Sadacca testified that he believed that
it was the medication, particularly the differing varieties and
quantities, that contributed to McMurtrey’s “radical differ-
ence” in and “roller-coaster” behavior and his “slurred”
speech. Sadacca also testified that McMurtrey’s state pre-
vented him from assisting in his own defense and that he
believed that McMurtrey’s medications interfered with
McMurtrey’s ability to communicate with counsel.
3. Dr. Joseph Geffen
Dr. Joseph Geffen, who examined McMurtrey in 1992, was
asked to review McMurtrey’s jail records from early 1981
through August 1981. Reviewing all of the data, including the
reports by various experts and doctors, relevant court records,
and McMurtrey’s statements of former drug and alcohol
abuse, Dr. Geffen found that the evidence suggested that
McMurtrey was not competent at the time of trial. “I think
that there’s a lot of supportive data that I reviewed . . . that
would indicate that he may not have been competent, that he
probably wasn’t at the time, at the time of trial.” When asked
specifically whether there was “a reasonable question as to
whether or not Mr. McMurtrey was or was not competent at
MCMURTREY v. RYAN 11245
the time of his trial,” Dr. Geffen said, “Yes, I believe that
there was.” Without having examined McMurtrey in 1981,
Dr. Geffen acknowledged that he could not state conclusively
whether McMurtrey was, in fact, competent during trial. He
also stated that he would have thought there was a reasonable
doubt even based on the materials available at the time of
trial, without the benefit of the subsequent information.
Dr. Geffen also described the difference between
McMurtrey as described in 1981 and when he saw him in
1992. Dr. Geffen found the difference to be “striking.”
I would say yes, that there was a striking difference
between my impressions and the picture that I had
built up prior to my seeing Mr. McMurtrey based on
the — not only on the reports of all the doctors who
examined him, but also including the mental health
records of the jail, and some of the minute entries
about his behavior, and then what I saw in 1992.
The difference I think would tend to support the
view of his having been quite dysfunctional and
quite distant, his behavior having been quite prob-
lematic, psychologically, at the time, because when
I saw him several years later, he had been free of
drugs, he had not had any medication, any psy-
chotropic medications, he had not had any street
drugs; his mind was clear.
Dr. Geffen went on to state that “McMurtrey was ashamed —
that he felt ashamed of himself that he had actually avoided
dealing with his trial and that he had engaged in taking so
many drugs and substances which resulted in his not being
able to be aware of what was going on and his not being able
to assist better.”
4. Jeff Rogers
Jeff Rogers was employed by the Pima County Sheriff’s
Department as a corrections officer from November 1979
11246 MCMURTREY v. RYAN
through August 1981. Rogers readily recalled McMurtrey
because they interacted every day. Rogers testified that
McMurtrey’s behavior was erratic and that he often moved
around in what the guards characterized as a “Thorazine shuf-
fle.” Rogers explained that this was not a medical diagnosis,
but a colloquial term referring to McMurtrey’s “shuffling
walk,” “glazed eyes,” and being “not very alert.” As time
passed, McMurtrey’s “stupor state” became more common,
and by summer (and the trial), McMurtrey was in a stupor two
thirds of the time that Rogers saw him. Rogers believed that
McMurtrey received medication about three times a day
because Rogers often accompanied the jail nurse as she dis-
pensed medicine to each inmate.
5. Ben McNitt
Ben McNitt, a former Tucson Citizen reporter, covered
parts of McMurtrey’s trial for the newspaper. McNitt testified
that he spoke to McMurtrey on the phone and that although
he tried to probe McMurtrey for his feelings about the inci-
dent and the victims, McMurtrey “seemed emotionally disen-
gaged” and unable to offer “a normal emotional response on
any level.” McNitt had spoken to hundreds of criminal defen-
dants during his ten years as a reporter in Arizona, but he
found McMurtrey’s level of “detachment” unusual. The only
time that McNitt saw McMurtrey speak in person was at the
sentencing hearing. McNitt explained his impression of
McMurtrey’s behavior in the courtroom as follows: “I have a
very clear recollection that my first impression was that he
appeared glazed. His eyes appeared glazed. Almost like some-
one who had just, you know, you just wake up and are still
sort of partly asleep.”
6. Deborah Wyermann
Deborah Wyermann, a reporter for the Arizona Daily Star
from 1978 to 1986, covered McMurtrey’s trial for the news-
paper. She could not remember much of the trial but testified
MCMURTREY v. RYAN 11247
that the sentencing was the “most bizarre” of the more than
150 sentencing hearings she had seen. Wyermann stated that
she had a good view of McMurtrey and that she could see and
hear him very clearly.
Well, Mr. McMurtrey appeared to me to be — to not
exactly know where he was, and in addition, . . . he
was erratic in both his body movements and his
speech. His eyes were unfocused and glazed, and his
voice was loud. Sometimes loud, sometimes soft,
and then, to my way of thinking, a lot of what he
said was fairly incoherent.
Wyermann also recalled the “spectacle” in which McMurtrey
knelt and asked to speak to the Creator.
7. Dr. Andrew Weil
Dr. Andrew Weil, an expert in substance abuse and addic-
tion, reviewed McMurtrey’s medical records for June 29 to
July 13, 1981. Dr. Weil noted that a number of the medica-
tions prescribed to McMurtrey — Valium, Dalmane, Librium,
and Ativan — are “benzodiazepines within a subdivision of
drugs called sedative hypnotic drugs.” Dr. Weil testified that
these drugs are used either as nighttime sedatives or daytime
anti-anxiety medications. He noted that these drugs are highly
addictive and that they commonly “interfere with memory,
ability to concentrate, and with intellectual function.” Dr.
Weil admitted that the effects varied from patient to patient
but stated that “it’s constant enough to be a major problem.”
Dr. Weil testified that these drugs are problematic because
they are among the most commonly prescribed medications
and because of the “percentage of people who get them who
suffer mental problems as a result of taking them.” Dr. Weil
also stated that combining the drugs, in the manner prescribed
to McMurtrey, is an additional danger.
11248 MCMURTREY v. RYAN
8. Jail Progress Notes
The jail’s progress notes reflected McMurtrey’s erratic
behavior as trial approached. In April 1981, he experienced
balance problems and fell several times in his cell and once
in the courtroom, which one of his doctors suggested was
caused by overmedication. In June 1981, McMurtrey com-
plained that he could not sleep because of his anxiety about
the trial, and that he was so upset that he wanted to put “[his]
thumb in someone’s eye.” The notes from July 2, 1981, the
second day of trial, reflect that McMurtrey was very agitated,
“tearful one moment then violent the next.” On July 7, 1981,
a nurse noted that the trial judge “wished to have the doctor
in jail to review the chart in reference to [McMurtrey’s] com-
plaints of stomach pain, constipation and nervous condition.”
McMurtrey was administered 10-milligram Valium injections
on July 10 and 11 and was again prescribed Ativan and Dal-
mane by July 13 as well as Valium. Finally, on July 16,
McMurtrey intentionally crashed his head through the
window-portion of a jail door.
9. Jim Himelic
Jim Himelic prosecuted the case. He stated that he did not
observe McMurtrey throughout the trial but instead looked at
him “every once in a while like you do any trial.” Himelic
stated that he could not recall “seeing anything out of the
ordinary during the trial on [McMurtrey’s] part.” He testified
that he never saw a deputy give McMurtrey medication and
that he did not recall seeing McMurtrey drowsy or asleep at
the counsel table. When asked if he remembered McMurtrey
saying anything during closing arguments, Himelic stated, “I
don’t remember. On that one I’m not saying he didn’t. I just
don’t remember.”
10. Lt. Leo Duffner
Lt. Leo Duffner of the Pima County Sheriff’s Department
served as Himelic’s lead detective during the trial. Lt. Duffner
MCMURTREY v. RYAN 11249
recalled that McMurtrey put his head down on the table when
McMurtrey’s father testified. He also stated that on several
occasions he saw McMurtrey write notes to his attorneys. Lt.
Duffner testified that he did not see McMurtrey receive any
medication in the courtroom.
11. Dr. John LaWall
Dr. LaWall was the only expert to testify at the 1994 hear-
ing who had examined McMurtrey prior to trial. At the hear-
ing, Dr. LaWall reiterated his earlier opinion that McMurtrey
had been competent to stand trial. He noted that the surviving
medical records did not indicate whether most of the medica-
tions prescribed were actually taken by McMurtrey.
Dr. LaWall stated that high doses of the drugs prescribed
to McMurtrey could “produce cognitive impairment, memory
impairment, poor concentration, and so on.” He stated that the
medications could have a “less predictable” effect on a vola-
tile person. Dr. LaWall also noted that several of the doses
prescribed in the jail medical records were “unusual” and that
Elavil and Librium combined “would produce greater seda-
tion than either one taken alone.” In his view, “[i]t would be
inappropriate . . . for a person to be taking more than one of
these particular drugs at the same time,” and that prescribing
Valium, Dalmane, and Ativan simultaneously was not “ratio-
nal pharmacology.”
Like the other experts who testified, Dr. LaWall reviewed
police reports, transcripts, and medical records to assess
McMurtrey’s competency at the time of trial. Dr. LaWall
stated that he relied on information provided by the police and
on testimony by McMurtrey only if it did not tend to be excul-
patory and discredited statements made by McMurtrey’s
counsel about McMurtrey’s appearance and ability to assist
with his defense: “You know, I don’t care what his counsel
says. His counsel can say anything.” Finally, Dr. LaWall
stated that it would have been “easier” to determine
11250 MCMURTREY v. RYAN
McMurtrey’s competency at trial if he had examined
McMurtrey closer to the date of trial. He conceded that the
drugs prescribed to McMurtrey could have rendered him men-
tally incompetent, even if McMurtrey was not mentally ill,
but that after March, Dr. LaWall did not examine him again
until after the trial in August, “and there was no way for me
to know what exactly he was taking at that time.”
12. Dr. Alexander Don
Dr. Alexander Don testified that a “competency determina-
tion or incompetency determination is a here-and-now event.”
He went on to explain that it is “virtually impossible to make
any intelligent assessment of someone’s competency after . . .
such a long period of time has elapsed.” Dr. Don did note that
if medications had been administered to McMurtrey, they
may have aided his competency by reducing anxiety and agi-
tation.
B. Analysis
After the 1994 hearing, Judge Arnold concluded that “dur-
ing all phases of trial and sentencing procedures in this case
[ ] Mr. McMurtrey was competent.” As we explain below, we
affirm the district court’s finding that, given the passage of
time, the lack of medical records, and the absence of a doctor
who assessed McMurtrey at the time of trial, a sufficiently
meaningful assessment of McMurtrey’s competency at trial
was not possible in 1994 to cure the failure to make such an
assessment at the time of trial.
[6] In Moran, 57 F.3d at 696, this court described the
framework with which we evaluate retrospective competency
hearings:
When a state court wrongfully fails to hold a compe-
tency hearing, “it often may be impossible to repair
the damage retrospectively.” Evans v. Raines, 800
MCMURTREY v. RYAN 11251
F.2d 884, 888 (9th Cir. 1986). However, although
retrospective competency hearings are disfavored,
see Drope, [420 U.S. at 183]; Blazak v. Ricketts, 1
F.3d 891, 894 n.3 (9th Cir. 1993) . . . , they are per-
missible whenever a court can conduct a meaningful
hearing to evaluate retrospectively the competency
of the defendant. See Evans, 800 F.2d at 888; [de
Kaplany, 540 F.2d at 986]. While the passage of
time is significant in determining whether such a
hearing can be held, Pate, 383 U.S. at 387, medical
reports contemporaneous to the time of the initial
hearing greatly increase the chance for an accurate
retrospective evaluation of a defendant’s compe-
tence. See Sieling v. Eyman, 478 F.2d 211, 215-16
(9th Cir. 1973). See also Ray v. Bowen, 843 F.2d
998, 1006 (7th Cir. 1988).
Under Moran, the two major factors we consider are the pas-
sage of time and the availability of medical reports contempo-
raneous to the time of the initial hearing. Both here weigh in
McMurtrey’s favor. We also note that the Tenth Circuit set
out a helpful framework. See United States v. Collins, 430
F.3d 1260, 1267 (10th Cir. 2005).
Pate itself illustrated an example of a retrospective compe-
tency determination that was inadequate. There, the Supreme
Court highlighted several difficulties in conducting a retro-
spective competency hearing. This court summarized these
problems in noting that the Court in Pate
reasoned that the inability of the jury to observe the
demeanor of the accused, the fact that expert testi-
mony would have had to have been based solely on
the printed record, and the six-year lapse between
the time of trial and the proposed post-conviction
hearing combined to compromise such a hearing
beyond redemption.
11252 MCMURTREY v. RYAN
de Kaplany, 540 F.2d at 986 n.11. The Supreme Court and
this circuit have also found retrospective competency hearings
lacking or impossible on other occasions. See, e.g., Drope,
420 U.S. at 183; Dusky v. United States, 362 U.S. 402, 403
(1960); Tillery v. Eyman, 492 F.2d 1056, 1059 (9th Cir.
1974); Moore, 464 F.2d 666-67.
[7] In this case, the evidentiary hearing occurred thirteen
years after McMurtrey’s trial. When the case first returned to
the trial court, the trial judge refused to hold a hearing, stat-
ing:
The Court further finds that if the Federal Courts
want to intervene in this matter, they can proceed
with the evidentiary hearing. I already ruled in 1988
six years ago on the matter . . . this Court saw
[McMurtrey], the jury saw him all the time through-
out the case. But he wasn’t insane, he wasn’t under
the influence of drugs during the trial. The record is
clear.
[8] Judge Arnold later changed his mind and scheduled an
evidentiary hearing. The absence of relevant and potentially
dispositive evidence, however, was apparent. Both parties
conceded that McMurtrey’s medical records were incomplete
and that there was no evidence to show which of the pre-
scribed medications were actually administered. Further, no
mental health expert examined McMurtrey immediately prior
to the trial or during the trial, and so there are no contempora-
neous medical opinions regarding McMurtrey’s competency.
Even Judge Arnold conceded that “of course this case is so
old, I don’t remember a lot of things.”
[9] We therefore conclude that because of the thirteen-year
delay, the lack of contemporaneous medical opinions, and the
lack of medical records, the state trial court could not in 1994
meaningfully determine whether McMurtrey had been compe-
tent at trial in 1981. Consequently, we find that the 1994 evi-
MCMURTREY v. RYAN 11253
dentiary hearing did not cure the state trial court’s failure to
hold a timely competency hearing.
CONCLUSION
We hold that McMurtrey’s memory problems, his erratic
behavior, and the variety and quantity of medications that he
was prescribed, combined with the absence of an expert eval-
uation made at the time of trial, created a reasonable doubt as
to McMurtrey’s mental competence to stand trial. The state
trial court’s failure to conduct a competency hearing at that
time violated McMurtrey’s due process rights. The retrospec-
tive competency hearing held thirteen years after trial was
insufficient to cure this due process violation. Accordingly,
we AFFIRM the district court’s decision to grant
McMurtrey’s habeas petition on this ground. Because this
issue is dispositive, we need not address the remaining issues
on appeal or on cross-appeal.
AFFIRMED.