The opinion
HASTIE, Circuit Judge
(dissenting).
I join in Judge Gibbons’ dissenting opinion and add only a brief statement summarizing the decisive considerations as they appear to me.
The state record makes it at least doubtful whether Phelan was mentally competent to defend himself at the time of the hearing on the degree of his guilt. Upon this conclusion, all members of the court seem to agree. However, the state court did not permit an inquiry into that critical and questionable matter at the hearing. Probably this is attributable to the rather confused course of the hearing. On that occasion, defense counsel were advancing various contentions about sanity at the time of the crime and competency to defend at various stages of the criminal proceeding. At the same time, Phelan’s frequent wild outbursts and his interruptions and contradictions of his own lawyers made it all but impossible to conduct the hearing in an orderly and discerning manner with each issue clearly identified and decided. Yet, as Judge Gibbons points out, the record shows that defense counsel did attempt, unsuccessfully, to have Phe-lan’s competency to participate in that hearing investigated and determined.
Now, long after the event, the only practical remedy for the above summarized inadequacy in trial procedure is a requirement that the state convene a new hearing on the degree of guilt, with the defense then accorded an opportunity to raise and contest as a preliminary question the issue of Phelan’s competency to defend himself at that new hearing.