David Edwin Mason
Classification: Serial killer
Characteristics: Robberies
Number of victims: 6
Date of murders: 1980 / 1982
Date of birth: December 2, 1956
Victims profile: 4 elderly victims (3 female and 1 male)/ His male lover / His cellmate
Method of murder: Strangulation / Shooting / Garotted with a towel
Location: California, USA
Status: Executed by asphyxiation-gas in California on August 24, 1993
Name: Mason, David Edwin CDC# C80300 Sex: M
Alias: None
Race: White
Date Received: 01/27/1984
DOB: 12/02/1956
Education: 9th Grade
Location: San Quentin State Prison
Married: No
Sentence:
County of Trial: Alameda Sentence Date: 01/27/1984
County of Residence: Alameda County of Offense: Alameda
Offense Date: 03/08/1980 Court Action: Affirmed
Court Date: 01/10/1991 Case #: 74687A
Victims:
Names unavailable. Mason beat, strangled and robbed four elderly victims within a nine-month period. While being held in county jail awaiting trial, Mason killed his cellmate. In addition, Mason was wanted in Butte County for shooting and killing his male lover while the victim was sleeping.
Co-Defendant:
None.
Summary:
Mason beat, strangled and robbed four elderly victims within a nine-month period. While being held in county jail awaiting trial, Mason killed his cellmate. In addition, Mason was wanted in Butte County for shooting and killing his male lover while the victim was sleeping.
Victim #1 - 73-year-old female
The victim knew Mason for several years. She had employed him for odd jobs and even had invited him into her apartment and showed him her alarm system, including panic buttons. On March 6, 1980, Mason took advantage of his position of trust, entered her home, choked her when she tried to escape to activate the alarm, robbed her, tied her up, beat and strangled her to death.
Victim #2 - 75-year-old male
On August 18, 1980, Mason beat, strangled and robbed the victim whom he may have known previously.
Victim #3 - 72-year-old female
On November 11, 1980, Mason strangled the victim and beat her over the head with a crescent wrench. Her vaginal tissue was cut and bruised.
Victim #4 - 75-year-old female
On December 6, 1980, Mason beat, strangled and robbed the victim who had bruises and cuts over most of her body. Her clothes were partially ripped off.
Victim #5 - Male cellmate at Alameda County Jail
With help from another inmate, Mason beat and garotted his cellmate to death with a knotted towel on May 9, 1982. He then hung the victim from a heavy shower rod in an attempt to make the murder look like a suicide.
Mason confessed to his crimes in a tape recording, "David Mason-Epitaph," which he gave to his parents. When questioned by the police, Mason also confessed, providing details of the crimes that were known only to investigators. Mason later recanted his confessions and claimed he confessed because of his desire to die after his lover was murdered.
Then in March 1993, Mason asked the court to allow him to substitute his counsel and indicated he wished to discontinue any appeals filed in his behalf. The court ordered a hearing to determine his mental ability to make an informed decision. After reviewing statements from court-appointed psychiatrists, the judge ruled in Mason's behalf. In June 1993, the case was returned to the Alameda County Superior Court who issued the execution order for August 24, 1993 the date requested by Mason.
Execution:
Inmate Mason was executed August 24, 1993 in the gas chamber at San Quentin State Prison. He was the first condemned inmate to voluntarily waive his appeals on a federal level. The execution was scheduled for 12:01 a.m. At two minutes before midnight, a federal judge called the prison to verify that Mason's attorney was present should Mason wish to stop the proceedings.
At 12:05 a.m. Mason was escorted onto the chamber. At 12:08 a.m. Warden Daniel Vasquez stepped into the chamber, pointed out the location of Mason's attorney in the witness area, and asked Mason if he had changed his mind and wished to stop the proceedings.
According to Warden Vasquez, Mason said, "No Warden, I want to proceed; thank you Warden." At 12:09 a.m. the lethal gas was introduced into the chamber. Mason was pronounced dead at 12:23 a.m.
Mason spent his last day visiting with family members. At approximately 6:00 p.m. he was escorted to the death watch cell. Mason was given unlimited use of the telephone to converse with his family members. Mason refused any last meal, requesting only ice water while in the death watch cell. Mason told the warden that he had no final words to impart.
Prior:
Mason had four previous commitments:
- Robbery with intent to commit murder;
- Assault and attempted robbery;
- Robbery with false imprisonment; and
- Various weapons charges.
In July 1977, Mason stabbed a store clerk with an ice pick after robbing the store. He threatened to kill her if she called the police and testified against him. Mason was sentenced in November 1977 to 36 months in state prison.
In March 1980, Mason assaulted and attempted to rob a victim who was returning home late at night. During the ensuing fight, Mason struck the victim on the top of the head with a gun. In December 1980, Mason gained admittance to the home of an elderly couple under the pretext of selling and delivering firewood. Mason handcuffed the victims to chairs and robbed them of $47,000 worth of jewelry and coins. At the time of his arrest in February 1981, Mason had in his possession a loaded sawed-off shotgun and pistol and other ammunition. He was convicted and sentenced in April 1982. He confessed to these crimes and was sentensed in June 1982 to a total of 124 months in state prison for both 1980 crimes.
Childhood/Family
According to the probation officer's report, Mason was raised by strict fundamentalist (Pentecostal) parents. From an early age, his behavior was uncontrollable. He set fires, cut and choked himself, held a knife to his infant brother as if to stab him, and assaulted other school children. His parents were harsh disciplinarians who beat him, locked him in his room, and subjected him to verbal and psychological abuse. At age 14, Mason was made a ward of the court.
Escape History
Mason was implicated in two, possibly three escape attempts from county jail. He was found with deadly weapons secreted on his person and in his cell.
Behavior on Condemned Status
Although Mason has no recent disciplinary infractions, he received five between 1983 and 1988:
07/13/83 Possession of contraband (weapon stock)
01/24/85 Attempting to introduce contraband into the institution (T-shirt)
08/05/87 Flooding tier
12/12/87 Force and violence (fist fighting)
06/30/88 Throwing potential caustic substance on prisoner (cup of coffee)
David Edwin Mason (December 2, 1956 – August 24, 1993) was an American serial killer who was executed in San Quentin's gas chamber in 1993. This marked the second execution in the state of California since 1967. Mason killed four elderly people in 1980.
The crimes
In July 1977, Mason stabbed a store clerk with an ice pick after robbing the store. He threatened to kill her if she called the police and testified against him. Mason was sentenced in November 1977 to 36 months in state prison.
In March 1980, Mason assaulted and attempted to rob a victim who was returning home late at night. During the ensuing fight, Mason struck the victim on the top of the head with a gun. In December 1980, Mason gained admittance to the home of an elderly couple under the pretext of selling and delivering firewood. Mason handcuffed the victims to chairs and robbed them of $47,000 worth of jewelry and coins.
At the time of his arrest in February 1981, Mason had in his possession a loaded sawed-off shotgun and pistol and other ammunition. He was convicted and sentenced in April 1982. He confessed to these crimes and was sentenced in June 1982 to a total of 124 months in state prison for both 1980 crimes.
The murders
In 1980, David Mason committed four murders one on March 6, one on August 28, one on November 11, and one on December 6, and a murder of a cellmate in 1982. Mason was wanted in Butte County for shooting and killing his male lover while the victim was sleeping. He committed many other infractions. On January 27, 1984 he was sentenced to die. He was executed on August 24, 1993 in San Quentin's gas chamber.
California Killer Loses Move to Delay Execution
The New York Times
August 22, 1993
A Federal appeals court has ruled that a condemned serial killer, David Mason, is mentally competent to abandon his appeals, and has effectively ordered a stay of execution lifted. Mr. Mason is scheduled to die in the gas chamber at San Quentin on Tuesday.
Unless overturned on an appeal by Mr. Mason's former lawyer, the decision Friday night by a three-judge panel of the United States Court of Appeals for the Ninth Circuit removes the last legal barrier to Mr. Mason's execution.
Earlier Friday the California Supreme Court denied a stay of execution that had been sought by Mr. Mason's current lawyer, Michael K. Brady, who contended that a conflict of interest by the public defenders who served as Mr. Mason's lawyers at his trial in 1983 had deprived him of a fair trial.
No Further Appeals Planned
Mr. Brady said after the State Supreme Court ruling that Mr. Mason would file no further appeals.
The State Attorney General, Dan Lungren, said he was pleased with the Federal court's ruling.
"We remain prepared to oppose any other Federal or state action that is brought by anyone in any venue, with the exception of a request for a Federal stay by David Mason himself, a move he has to this point consistently opposed," Mr. Lungren said.
After Mr. Mason had abandoned all appeals of his death sentence, his former lawyers had requested the stay of execution, which had been imposed by a Federal judge on Aug. 3, in an effort to buy time to appeal a ruling that Mr. Mason was mentally competent to make such decisions.
In a decision written by Judge Proctor Hug Jr., the panel ruled unanimously that the Aug. 3 ruling on competence was supported by findings of a court-appointed psychiatrist and by Mr. Mason's own testimony.
The court left the stay in place until 4 P.M. Monday to allow Mr. Mason's former lawyers to seek a further stay from an 11-judge panel of the appeals court. The only possible appeal after that would be to the United States Supreme Court.
Mr. Mason, 36, is scheduled to be executed early Tuesday for the robberies and murders of four elderly neighbors in Oakland in 1980 and the strangling of a fellow inmate at a county jail in 1982.
Last-Minute Turnabout
He declared this spring that he was willing to accept his punishment and opposed all further appeals. But on Thursday, Mr. Brady, with Mr. Mason's consent, asked the state's highest court to stay the execution and grant a new trial.
Mr. Brady said that Mr. Mason's public defenders at his 1983 trial, believing he was threatening them, concocted a claim that he had plotted to kill them, seize hostages in court and escape. They got a private lawyer to feed the story to the sheriff's office while concealing their roles, Mr. Brady said.
That created a conflict of interest that tainted the trial, and led to a search of Mr. Mason's cell that produced incriminating evidence, Mr. Brady argued. The Alameda County public defender and the private lawyer implicated by Mr. Brady denied the accusations.
On Friday the State Supreme Court denied the stay, dismissed the appeal and exonerated Mr. Mason's trial lawyers.
Even if Mr. Brady's accusations were true, the court ruled, they failed to show that Mr. Mason had been represented inadequately or that his lawyers had done anything improper in notifying the authorities of what they perceived to be a security threat.
"The allegations suggest nothing more than that counsel acted to preserve the confidences of their client while fulfilling their duties as officers of the court," the Justices said.
At a news conference after the decision, Mr. Brady described Mr. Mason as subdued and, despite his determination not to pursue further appeals, afraid of dying in the gas chamber.
"I'm sure that David Mason is very afraid -- that, inside, David Mason is very scared and he is hurting," Mr. Brady said. "That's a natural product of what he has to go through in the next few days."
5 F.3d 1220
David Edwin MASON, By and Through Charles C. MARSON,
Petitioner-Appellant,
v.
Daniel E. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
David Edwin MASON, Petitioner,
Randy Alana, Patrick Tafoya and Lee Terry Farmer, as next
friends of David E. Mason, Applicants in
intervention/Appellants,
v.
Daniel B. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
Nos. 93-99008, 93-99009.
United States Court of Appeals,
Ninth Circuit.
Aug. 20, 1993.
ORDER
Having considered the merits of the above captioned appeals and having filed an opinion herein and the court being aware that a stay of execution was entered by the district court which shall remain in effect pending further action by this court and it appearing that further time may be required for consideration by this court whether to grant en banc reconsideration, now therefore, it is,
ORDERED that the clerk of this court, unless otherwise directed by an en banc court, shall issue the mandate at 4:00 PDT on August 23, 1993 and on that date and at that time, the stay of execution entered by the district court shall be of no further force and effect.
Appeal from the United States District Court for the Northern District of California.
Before: HUG, POOLE, and BEEZER, Circuit Judges.
HUG, Circuit Judge:
The petitioner, David Mason, was convicted in California state court of five murders and received the sentence of death on each count. The judgment was affirmed on appeal by the California Supreme Court. Three petitions for writs of habeas corpus were denied by that court.1
Mason, through his attorney Charles Marson, filed a petition for a writ of habeas corpus in the federal district court. Prior to any hearing on that petition, Mason informed his counsel Marson that he did not want to proceed with the federal habeas petition, and that he desired to discharge Marson as his attorney because Marson did not agree with this course of action. Attorney Marson resisted the dismissal of the action, fearing that Mason was not competent to make such a decision.
The district court appointed a psychiatrist, Dr. Kessler, to examine Mason and to aid the court in its competency determination. The district court also granted Mason's request to have an attorney of his choice, Michael Brady, represent him at the competency hearing. At the competency hearing attorney Marson, attorney Brady, the deputy attorney general Rivlin for the state, and Mason himself took part.
Reports and testimony from Dr. Kessler and from Dr. Wayland, Dr. Fromming and Dr. Foster were considered along with substantial documentary evidence. After due consideration, the district court entered an order finding Mason competent to substitute counsel and to dismiss the petition. Thereafter, on application of Mason and his substitute counsel, the court entered its order dismissing the petition. We affirm the district court.
Although there are numerous procedural issues in this case, the controlling determination is whether the decision of the district court finding Mason mentally competent to substitute counsel and dismiss the petition was reversible error.
I.
* Detailed Facts
David Mason, a California prisoner, was convicted of five counts of first degree murder with special circumstances and sentenced to death in the Superior Court of Alameda County, California. The Supreme Court of the State of California affirmed Mason's conviction and sentence, People v. Mason, 52 Cal.3d 909, 277 Cal.Rptr. 166, 802 P.2d 950, cert. denied, --- U.S. ----, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). That Court has subsequently rejected three habeas corpus petitions involving Mason.
On April 23, 1992, attorney Charles C. Marson, Mason's appellate counsel in the state proceedings, filed a federal habeas corpus petition on behalf of Mason in the United States District Court for the Northern District of California. Mason verified the petition one day later. In response to the petition, the district court stayed Mason's execution date of April 28, 1992 and appointed Marson to represent Mason in the federal proceedings.
On January 4, 1993, Marson filed an amended habeas corpus petition which Mason did not verify. In a letter to the district court dated January 7, 1993, Mason indicated that he was satisfied with the decision of the California Supreme Court, that he had decided not to seek further relief in federal court, and that he had neither the need nor the desire to be represented by Marson. On January 21, 1993 the State of California filed a motion to dismiss Mason's petition.
On February 4, 1993, Marson filed opposition papers and declarations from several mental health professionals stating that Mason was suffering from mental illnesses that were affecting his decision to withdraw his petition. The district court appointed an independent psychiatric expert to examine Mason and scheduled a hearing to determine Mason's competency.
Prior to the competency hearing, the district court received several letters from Mason reiterating his desire to both abandon federal review of his death sentence and to dismiss Marson as counsel. Mason complained that Marson had ignored his objections and continued the federal proceedings because Marson was personally opposed to the death penalty.
For this reason Mason contended that Marson would be unable to adequately represent Mason's interests. Mason indicated that he had retained his own attorney, Michael Brady, and requested the court to appoint Brady as his counsel. On March 5, 1993 the court recognized the appearance of Brady as counsel for Mason, but ordered Marson to remain Mason's court-appointed attorney until his mental competence was determined.
On May 13 and 14, 1993, the district court conducted a hearing to determine Mason's competency, in which the counsel--Marson, Brady and the Deputy Attorney General--were given the opportunity to present and cross-examine witnesses. At that hearing, Marson called as witnesses Dr. Kathleen Wayland, a psychologist who had interviewed Mason in November of 1992 and Dr. David V. Foster, a psychiatrist who had not examined Mason, but who had reviewed the evidence submitted in connection with the hearing and other documents.
Both experts testified that Mason was suffering from post-traumatic stress disorder ("PTSD") and that this condition affected his decision to abandon his petition for habeas corpus. Marson supplemented this testimony with declarations already in the record from Dr. Wayland, Dr. Foster, Dr. Karen B. Fromming, Dr. Jules Burstein, and three of Mason's sisters, Darlene Mason Hill, Linda Sue Mason Miller, and Joy Louise Mason. Marson introduced additional declarations, copies of paintings made by Mason and other documents.
The State called Dr. David Kessler, the psychiatrist appointed by the court to independently evaluate Mason. Prior to the hearing, Dr. Kessler had conducted an examination of Mason and submitted a report to the court concluding that Mason was mentally competent. During the hearing, Dr. Kessler maintained this view, testifying that Mason did not suffer from PTSD.
Dr. Kessler stated that Mason has suffered throughout his life from an antisocial personality disorder, but that this had not affected his decision to forego federal habeas review. Finally, the State called Mason himself. In examination by both the court and counsel, Mason testified concerning his decision and its consequences.
On June 7, 1993, the district court entered an order finding Mason competent to substitute counsel and to dismiss the action. The court stated that it would dismiss his petition upon receipt of a request to do so signed by Mason and his counsel, if any. On June 10, Mason filed a request that Michael Brady be substituted for Charles Marson. On the same date, Mason filed a request to dismiss his petition and vacate the stay of execution. On June 14, the district court relieved Marson as counsel of record, substituted Brady, and granted a voluntary dismissal of the petition pursuant to Fed.R.Civ.P. 41(a)(1).
The Superior Court thereafter issued a death warrant setting Mason's execution date for August 24, 1993 at 12:01 a.m.
On June 28, 1993, Marson filed a motion to set aside the judgment pursuant to Fed.R.Civ.P. 59(e). On July 22, 1993, three of Mason's siblings, and three persons, Randy Alana, Patrick Tafoya and Lee Terry Farmer, filed a motion to intervene in the Rule 59(e) motion as next friends, through their attorney Richard Mazer. Shortly thereafter, Mason's siblings withdrew from the next friend petition. A hearing was held on July 30, 1993, at which time the district court denied the motion to set aside the judgment and the motion to intervene.
On August 3, 1993, the district court granted Marson's request for a certificate of probable cause and a stay of execution pending appeal, but denied a similar request made by the next friends. Marson now appeals from the judgment entered on June 14, 1993 on behalf of Mason. The next friends appeal both the June 14 judgment and the denial of their motion to intervene. The State has filed an emergency motion to vacate the stay of execution.
II
Procedural Posture
This case presents an unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner's competence. To add to the unusual character of this case, petitioner sought and was granted permission to have counsel of his choice represent him in upholding his competence to guide the course of his litigation. Marson was the court appointed attorney who had represented Mason in his appeals to the California Supreme Court and had filed the petition for habeas corpus in the federal district court.
As his attorney he believed he had an ethical obligation, acting in the best interest of his client, to contest Mason's competency to dismiss his action. We have recognized the appropriateness of such action by attorneys in similar circumstances. See Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.1979) (per curiam).
On the other hand Mason as the petitioner is entitled to guide the course of his litigation, including dismissing his action either on his own or through an attorney of his choice, provided he is mentally competent to do so. Attorney Marson, as a participant for Mason in the proceedings, is also entitled to appeal the court's decision of mental competence, which would otherwise remain unreviewed in a death penalty case. This was recognized by Judge Whyte in granting the certificate of probable cause and the stay of execution.
The appeal of the next friends is far more tenuous, in that a certificate of probable cause was not granted. Furthermore, the next friends did not participate in the competency hearings, but only at the stage of the motion to amend or alter the judgment. In order to have standing, the next friends would have to establish the incompetence of Mason, in any event. See Whitmore v. Arkansas, 495 U.S. 149, 164, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990); Brewer v. Lewis, 989 F.2d 1021, 1026 (9th Cir.1993). Because we hold that the district court did not err in finding Mason competent to dismiss his federal court action, we need not delve into the procedural issues relative to the appeal of the next friends.
III
Competency Determination
Initially we must commend District Judge Whyte for the manner in which the proceedings in the district court were conducted. Adequate time for preparation was afforded. A psychiatrist was appointed by the court. The court noted: "In order to ensure impartiality the court elected to appoint a psychiatrist other than one recommended by one of the parties." All interested parties were able to present all the relevant evidence. Mason was afforded counsel of his choice to represent his point of view and he, Marson, and the State's Attorney were each given full opportunity to examine the witnesses. The district judge thoroughly and carefully questioned Mason himself.
This panel of the court has had a full opportunity to consider the excellent briefs of the parties, to review the record before the district court and to hear extended oral argument. The panel appreciates the manner in which this serious matter has been presented to the court.
The district court correctly set forth the standard by which his determination on mental competence must be made.
This court must ascertain whether Mr. Mason has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. Rees v. Peyton, 384 U.S. 312, 314 [86 S.Ct. 1505, 1506, 16 L.Ed.2d 583] (1966).
The district court made the following findings of fact:
1. Mr. Mason is not suffering from a mental disease, defect, or disorder other than possibly antisocial personality disorder.
2. Mr. Mason's capacity to decide to discharge his attorney and abandon this action is not substantially affected by any antisocial personality disorder.
3. Mr. Mason's decision to discharge his attorney and dismiss this action is made freely and voluntarily with a full understanding of the ramifications and the consequences of his decision.
The United States Supreme Court has emphasized the importance of compliance with the dictates of Federal Rule of Civil Procedure 52(a). That Rule provides: "Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The Court has stated:
Although the meaning of the phrase "clearly erroneous" is not immediately apparent, certain general principles governing the exercise of the appellate court's power to overturn findings of a district court may be derived from our cases.... The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. "In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo." Zenith Radio Corp v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969).
If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous....
This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts....
....
When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.
Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
Although there was conflicting evidence, the testimony of the court appointed psychiatrist, Dr. Kessler, clearly supports the decision of the district court. Furthermore the district court had an opportunity to evaluate the testimony of Dr. Wayland and Dr. Foster in light of the cross-examination and other testimony.
In addition, the district court conducted extensive questioning of petitioner Mason himself. This questioning of Mason of course would not be determinative absent adequate expertise, advice and testimony, but is clearly supportive of the decision of the district court.
On appeal Marson argues that the district court applied an incorrect burden of proof in determining the mental competence of Mason. When a habeas petition has been filed in the federal district court, appropriately invoking the court's jurisdiction and the mental competency of the petitioner is reasonably questioned, it is the obligation of the court to determine the petitioner's mental competence.
Initially sufficient evidence must be presented to cause the court to conduct an inquiry. After that point it is no one's burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition. This is essentially the procedure followed in Rees v. Peyton.
The Court in Rees stated:
Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees' mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court's certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees' mental competence and render a report on the matter to us....
... The District Court will hold such hearings as it deems suitable, allowing the State and all other interested parties to participate should they so desire, and will report its findings and conclusions to this Court with all convenient speed.
Rees v. Peyton, 384 U.S. at 313-14, 86 S.Ct. at 1506-07. The district court followed the same procedure in this case, with all interested parties being allowed to participate so as to assist the court in its determination.
The abandonment of a filed petition is to be distinguished from the situation in which parties are seeking initially to invoke the jurisdiction of the federal court as next friends. In that case, no petition has been filed by the convicted person that properly affords jurisdiction in the district court.
Instead, parties who are foreign to the criminal conviction are seeking to establish their right to invoke the jurisdiction of the district court as next friends of the convicted person. In order to establish initial standing to bring such an action, the burden of proof is on the next friends to show the mental incompetence of the convicted person himself. Whitmore v. Arkansas, 495 U.S. at 164, 110 S.Ct. at 1727; see also Brewer v. Lewis, 989 F.2d at 1026.
Although there are some similarities in this case to that of next friend cases in that attorney Marson seeks to establish the mental incompetence of his client despite his client's wishes, this is not a jurisdictional standing question. Rather Marson is representing Mason's rights in his habeas proceeding in the event that he is actually mentally incompetent to dismiss his habeas petition.
We recognize that the Supreme Court in Medina v. California, --- U.S. ----, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), held that it did not violate due process in a criminal trial to place upon the party claiming incompetence the burden of proving by a preponderance of the evidence that the defendant is incompetent.
This holding under the due process clause of the United States Constitution does not dictate, however, the correct procedure for determining mental competence in a federal habeas corpus proceeding. Such a proceeding is much more akin to that of the procedure followed in Rees v. Peyton in a request to dismiss a petition for certiorari, whereby the district court is to make an independent determination of mental competency.
IV
Conclusion
Under the standard of Federal Rule of Civil Procedure 52(a) as expounded by the Supreme Court in Anderson we uphold the factual determination of the district court that Mason was mentally competent to substitute his attorney and to dismiss his federal habeas action.
We therefore affirm the district court's order dismissing the action and we address the stay of execution in a separate order.
*****
1
During the course of these proceedings the third petition for a writ of habeas corpus was filed with the California Supreme Court and denied on this date. Counsel Brady emphasized at oral argument that Mason desired to have the subject of that petition considered only by the California Supreme Court and that no further filings would be made in federal court. Thus this recent petition to the California Supreme Court has no bearing on the proceedings before us
5 F.3d 1226
David Edwin MASON, By and Through Charles C. MARSON,
Petitioner-Appellant,
v.
Daniel B. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
David Edwin MASON, Petitioner,
Randy ALANA, Patrick Tafoya and Lee Terry Farmer, as next
friends of David E. Mason, Applicants in
intervention-Appellants,
v.
Daniel B. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
Nos. 93-99008, 93-99009.
United States Court of Appeals,
Ninth Circuit.
Oct. 6, 1993.
ORDER
The mandate is recalled. The en banc court having completed its duty pursuant to Death Penalty Rule 22-4(e)(3), the en banc court remands this cause to the panel which had initial jurisdiction.
PREGERSON, Circuit Judge, dissenting:
Because I do not believe that the en banc panel completed its duties under Ninth Circuit Rules 22-2(b)(4) and 22-4(e)(2), I respectfully dissent. I also concur in Judge Noonan's dissent.
I. PROCEDURE
Rule 22-2(b)(4) states that, upon a call for en banc review under Rule 22-4(e)(2), the death penalty en banc court, selected for that case, will review the decision of the special state death penalty panel. That en banc court's review shall include not only the review of orders granting or denying applications for a certificate of probable cause and motions for stays of execution, but shall extend to all of the other decisions of the special state death penalty panel, including decisions on the merits.
(Emphasis added.)
On August 23, 1993, the en banc panel issued an order that stated
A majority of the special death penalty en banc court has voted to affirm the order of the special death penalty panel vacating the stay entered by the district court. All stays in the circuit and district courts are hereby vacated.
This order reflects an en banc vote as to the stay of execution only. The en banc court did not review the merits of the opinion issued by the special state death penalty three-judge panel. It is true that an en banc panel member's vote on whether to grant a stay will often reflect that member's position on the merits of the three-judge panel's opinion. But in this instance it was clear that several panel members cast their votes only on the stay. This is not the review explicitly provided for by our death penalty rules.
There are problems with the death penalty three-judge panel's opinion. I believe that the death penalty en banc panel was required to address the merits of the three-judge panel's opinion. Thus, I discuss these problems below.
II. THE MERITS
A. Background
On April 23, 1992, petitioner David Mason filed a habeas petition in federal district court challenging his state murder convictions and death sentence. On January 7, 1993, he informed the district court that he did not wish to seek any further relief in federal court. On May 13-14, 1993, the district court held a competency hearing to determine David Mason's mental competency to make such a decision. On June 7, 1993, the district court issued an order in which it found him to be competent. See Order Following Competency Hearing (N.D.Cal. June 7, 1993) ("Order").
The court then stayed David Mason's execution pending review of its decision on the issue of competency by our court. See Order Denying Motion to Strike, Denying Motion to Amend or Alter the Judgment and Granting Application For a Certificate of Probable Cause And a Stay of Execution (N.D.Cal. Aug. 3, 1993). David Mason's attorney, Charles Marson, thereafter appealed the district court's order to our court.
On August 20, 1993, the special death penalty three-judge panel affirmed the district court's order. I believe that, at the least, this matter should have been remanded to the district court to determine whether David Mason was competent to waive his appeals by applying the burden of proof announced by the three-judge panel.
B. The District Court's Error
The district court held that the burden of proof rested on Attorney Marson to prove that David Mason was incompetent to waive his additional appeals. See Order, at 8-9. The district court cited circuit precedent in "next friend" cases that held that the "burden [of proof] is on the person asserting petitioner's incompetence." Id. at 8 (citations omitted). The court analogized the threshold inquiry of the "next friend analysis" to this case and concluded that Attorney Marson had the burden of proving by a preponderance of the evidence that David Mason was not competent to waive his appeals.1
In contrast, the three-judge panel held that competence "is no one's burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition." See Mason v. Vasquez, 5 F.3d 1220, 1225 (9th Cir.1993) (emphasis added). By concluding that no one had the burden of proving David Mason's competency, the three-judge panel necessarily determined that the district court erred in stating that the burden of proof was on Attorney Marson.
C. Proper Disposition
This being the case, the three-judge panel should have remanded this matter to the district court to determine David Mason's competency by applying the burden of proof enunciated by the three-judge panel--viz. whether Mason, by a preponderance of the evidence, was mentally competent to withdraw his petition and to waive his appeals.
In cases where an appellate court determines that an improper burden of proof was applied, the normal course is to remand so that the evidence can be reexamined in light of the appropriate standard. See Santowsky v. Kramer, 455 U.S. 745, 770, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982); In re Winship, 397 U.S. 358, 367-68, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970); Ng Yip Yee v. Barber, 267 F.2d 206 (9th Cir.1959); Brewer v. Lewis, 989 F.2d 1021, 1031 (Norris, J., dissenting). See also Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 455 (9th Cir.1986) (recognizing that burden of proof affects all aspects of the jury's verdict and that it is impossible to determine whether the erroneous burden of proof was outcome determinative); Matter of Battaglia, 653 F.2d 419, 423-24 (9th Cir.1981) (after concluding that the district court misplaced the burden of proof, the court held that "y placing the burden of persuasion on [the defendant], the district court made the gaps in [the defendant's] proof more damaging than the gaps in the government's proof. This was error."); United States v. Lake, 482 F.2d 146, 149-50 (9th Cir.1973) (erroneous burden-shifting instruction required new trial where there is at least some doubt that the jury misinterpreted the proper allocation of the burden of proof).
Here, the district court applied an improper allocation of the burden of proof to determine David Mason's competency. In so doing, the court placed more weight on the deficiencies in Attorney Marson's proof establishing incompetency than on the government's proof establishing competency. In short, the district court improperly placed the risk of nonpersuasion on Attorney Marson.
Nonetheless, the three-judge panel concludes, that even though the district court said it was placing the burden of proof on Attorney Marson, that in fact the court did not do so when it determined David Mason's competency. The panel does not provide any record cites to support its conclusion. In fact, the district court's application of the incorrect burden of proof pervades its analysis in determining David Mason's competency. See Order, at 8-9, 15, 16, 17, 18.
The district court never found that David Mason had the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation." Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966). The district court merely found that David Mason was not incompetent. The district court did not affirmatively find that he was competent to waive his appeals.
The district court's error could have easily changed the outcome of this case. This is because "n all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome." Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).
Given the substantial evidence that David Mason had suffered severe trauma beyond the range of usual human experience (e.g., setting himself on fire, intentional collapsing of his own windpipe, slashing his own wrists, attempting to hang himself, and slashing of his own throat), I find it impossible to say that the district court's erroneous placement of the burden of proving incompetency on Attorney Marson could not have affected the outcome in any way.
Indeed, the district court acknowledged as much in its Order Denying Motion to Strike, Denying Motion to Amend or Alter the Judgment and Granting Application For a Certificate of Probable Cause and a Stay of Execution, at 2-3. The court there said that "f the orders of June 7 and 14, 1993, are based on an error of law or fact, this court may have erred in allowing Mr. Marson to be discharged by petitioner." Id. (Emphasis added.)
Moreover, the district court entered a stay of David Mason's execution pending review by our court of the issue regarding the placement of the burden of proof. Id. at 4-5. In so doing, the district court noted that "[o]ne district court has placed the burden of proof on the state at an analogous hearing ... and, although this court disagrees with that holding, the issue is debatable among jurists of reason." Id. at 5. Hence, the district court implicitly acknowledged that the placement of the burden of proof in this case could be outcome determinative.
Accordingly, we should have remanded this matter to the district court so that it could have applied--in light of the three-judge panel's decision--the proper burden of proof to determine David Mason's mental competency to withdraw his petition and to waive his appeals.2
For the reasons set forth above, I respectfully dissent from the en banc panel's order remanding this case to the three-judge panel without addressing the merits.
*****
NOONAN, Circuit Judge, dissenting:
I concur in Judge Pregerson's dissent and add the following:
1. The rules, as carefully constructed to govern cases involving the imposition of death, were not observed.
2. Precedent was not observed. If reasonable jurists can disagree on the merits of an issue involving death, the court should grant a stay so that the matter may be fully considered. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394-95 n. 4, 77 L.Ed.2d 1090 (1983).
3. Emergencies and errors of the kind that occurred in this case are created by the exigencies of state law setting a twenty-four hour period in which the death warrant is good. Cal.Penal Code Sec. 1227 ("appointing a day upon which the judgment shall be executed"). The State of California is capable of legislative action that does not impose such draconian limits. See id. Sec. 1227.5.
The state law should be conformed to the requirements of the United States Constitution and the review that habeas corpus provides thereunder.
*****
1
The district court had already announced--well before the hearing itself--that the burden of proof ultimately rested with Attorney Marson. See Points and Authorities in Support of Motion to Alter or Amend the Judgment, June 28, 1993, at 2 (Brief of Appellant Attorney Marson)
That the district court put the burden on Attorney Marson is further illustrated by the district court's conclusion that "[a] preponderance of the evidence does not show, however, that the remaining diagnostic criteria of PTSD or any other mental illness have been manifested." Order, at 15.
2
There is, of course, an additional question whether the three-judge panel erred in holding that proof of competency was "no one's burden to sustain." Because one party must bear the risk of nonpersuasion, it seems difficult to conclude that proof of competency is "no one's burden to sustain" and at the same time hold that "it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition." Mason, at 1225 (emphasis added)
Classification: Serial killer
Characteristics: Robberies
Number of victims: 6
Date of murders: 1980 / 1982
Date of birth: December 2, 1956
Victims profile: 4 elderly victims (3 female and 1 male)/ His male lover / His cellmate
Method of murder: Strangulation / Shooting / Garotted with a towel
Location: California, USA
Status: Executed by asphyxiation-gas in California on August 24, 1993
Name: Mason, David Edwin CDC# C80300 Sex: M
Alias: None
Race: White
Date Received: 01/27/1984
DOB: 12/02/1956
Education: 9th Grade
Location: San Quentin State Prison
Married: No
Sentence:
County of Trial: Alameda Sentence Date: 01/27/1984
County of Residence: Alameda County of Offense: Alameda
Offense Date: 03/08/1980 Court Action: Affirmed
Court Date: 01/10/1991 Case #: 74687A
Victims:
Names unavailable. Mason beat, strangled and robbed four elderly victims within a nine-month period. While being held in county jail awaiting trial, Mason killed his cellmate. In addition, Mason was wanted in Butte County for shooting and killing his male lover while the victim was sleeping.
Co-Defendant:
None.
Summary:
Mason beat, strangled and robbed four elderly victims within a nine-month period. While being held in county jail awaiting trial, Mason killed his cellmate. In addition, Mason was wanted in Butte County for shooting and killing his male lover while the victim was sleeping.
Victim #1 - 73-year-old female
The victim knew Mason for several years. She had employed him for odd jobs and even had invited him into her apartment and showed him her alarm system, including panic buttons. On March 6, 1980, Mason took advantage of his position of trust, entered her home, choked her when she tried to escape to activate the alarm, robbed her, tied her up, beat and strangled her to death.
Victim #2 - 75-year-old male
On August 18, 1980, Mason beat, strangled and robbed the victim whom he may have known previously.
Victim #3 - 72-year-old female
On November 11, 1980, Mason strangled the victim and beat her over the head with a crescent wrench. Her vaginal tissue was cut and bruised.
Victim #4 - 75-year-old female
On December 6, 1980, Mason beat, strangled and robbed the victim who had bruises and cuts over most of her body. Her clothes were partially ripped off.
Victim #5 - Male cellmate at Alameda County Jail
With help from another inmate, Mason beat and garotted his cellmate to death with a knotted towel on May 9, 1982. He then hung the victim from a heavy shower rod in an attempt to make the murder look like a suicide.
Mason confessed to his crimes in a tape recording, "David Mason-Epitaph," which he gave to his parents. When questioned by the police, Mason also confessed, providing details of the crimes that were known only to investigators. Mason later recanted his confessions and claimed he confessed because of his desire to die after his lover was murdered.
Then in March 1993, Mason asked the court to allow him to substitute his counsel and indicated he wished to discontinue any appeals filed in his behalf. The court ordered a hearing to determine his mental ability to make an informed decision. After reviewing statements from court-appointed psychiatrists, the judge ruled in Mason's behalf. In June 1993, the case was returned to the Alameda County Superior Court who issued the execution order for August 24, 1993 the date requested by Mason.
Execution:
Inmate Mason was executed August 24, 1993 in the gas chamber at San Quentin State Prison. He was the first condemned inmate to voluntarily waive his appeals on a federal level. The execution was scheduled for 12:01 a.m. At two minutes before midnight, a federal judge called the prison to verify that Mason's attorney was present should Mason wish to stop the proceedings.
At 12:05 a.m. Mason was escorted onto the chamber. At 12:08 a.m. Warden Daniel Vasquez stepped into the chamber, pointed out the location of Mason's attorney in the witness area, and asked Mason if he had changed his mind and wished to stop the proceedings.
According to Warden Vasquez, Mason said, "No Warden, I want to proceed; thank you Warden." At 12:09 a.m. the lethal gas was introduced into the chamber. Mason was pronounced dead at 12:23 a.m.
Mason spent his last day visiting with family members. At approximately 6:00 p.m. he was escorted to the death watch cell. Mason was given unlimited use of the telephone to converse with his family members. Mason refused any last meal, requesting only ice water while in the death watch cell. Mason told the warden that he had no final words to impart.
Prior:
Mason had four previous commitments:
- Robbery with intent to commit murder;
- Assault and attempted robbery;
- Robbery with false imprisonment; and
- Various weapons charges.
In July 1977, Mason stabbed a store clerk with an ice pick after robbing the store. He threatened to kill her if she called the police and testified against him. Mason was sentenced in November 1977 to 36 months in state prison.
In March 1980, Mason assaulted and attempted to rob a victim who was returning home late at night. During the ensuing fight, Mason struck the victim on the top of the head with a gun. In December 1980, Mason gained admittance to the home of an elderly couple under the pretext of selling and delivering firewood. Mason handcuffed the victims to chairs and robbed them of $47,000 worth of jewelry and coins. At the time of his arrest in February 1981, Mason had in his possession a loaded sawed-off shotgun and pistol and other ammunition. He was convicted and sentenced in April 1982. He confessed to these crimes and was sentensed in June 1982 to a total of 124 months in state prison for both 1980 crimes.
Childhood/Family
According to the probation officer's report, Mason was raised by strict fundamentalist (Pentecostal) parents. From an early age, his behavior was uncontrollable. He set fires, cut and choked himself, held a knife to his infant brother as if to stab him, and assaulted other school children. His parents were harsh disciplinarians who beat him, locked him in his room, and subjected him to verbal and psychological abuse. At age 14, Mason was made a ward of the court.
Escape History
Mason was implicated in two, possibly three escape attempts from county jail. He was found with deadly weapons secreted on his person and in his cell.
Behavior on Condemned Status
Although Mason has no recent disciplinary infractions, he received five between 1983 and 1988:
07/13/83 Possession of contraband (weapon stock)
01/24/85 Attempting to introduce contraband into the institution (T-shirt)
08/05/87 Flooding tier
12/12/87 Force and violence (fist fighting)
06/30/88 Throwing potential caustic substance on prisoner (cup of coffee)
David Edwin Mason (December 2, 1956 – August 24, 1993) was an American serial killer who was executed in San Quentin's gas chamber in 1993. This marked the second execution in the state of California since 1967. Mason killed four elderly people in 1980.
The crimes
In July 1977, Mason stabbed a store clerk with an ice pick after robbing the store. He threatened to kill her if she called the police and testified against him. Mason was sentenced in November 1977 to 36 months in state prison.
In March 1980, Mason assaulted and attempted to rob a victim who was returning home late at night. During the ensuing fight, Mason struck the victim on the top of the head with a gun. In December 1980, Mason gained admittance to the home of an elderly couple under the pretext of selling and delivering firewood. Mason handcuffed the victims to chairs and robbed them of $47,000 worth of jewelry and coins.
At the time of his arrest in February 1981, Mason had in his possession a loaded sawed-off shotgun and pistol and other ammunition. He was convicted and sentenced in April 1982. He confessed to these crimes and was sentenced in June 1982 to a total of 124 months in state prison for both 1980 crimes.
The murders
In 1980, David Mason committed four murders one on March 6, one on August 28, one on November 11, and one on December 6, and a murder of a cellmate in 1982. Mason was wanted in Butte County for shooting and killing his male lover while the victim was sleeping. He committed many other infractions. On January 27, 1984 he was sentenced to die. He was executed on August 24, 1993 in San Quentin's gas chamber.
California Killer Loses Move to Delay Execution
The New York Times
August 22, 1993
A Federal appeals court has ruled that a condemned serial killer, David Mason, is mentally competent to abandon his appeals, and has effectively ordered a stay of execution lifted. Mr. Mason is scheduled to die in the gas chamber at San Quentin on Tuesday.
Unless overturned on an appeal by Mr. Mason's former lawyer, the decision Friday night by a three-judge panel of the United States Court of Appeals for the Ninth Circuit removes the last legal barrier to Mr. Mason's execution.
Earlier Friday the California Supreme Court denied a stay of execution that had been sought by Mr. Mason's current lawyer, Michael K. Brady, who contended that a conflict of interest by the public defenders who served as Mr. Mason's lawyers at his trial in 1983 had deprived him of a fair trial.
No Further Appeals Planned
Mr. Brady said after the State Supreme Court ruling that Mr. Mason would file no further appeals.
The State Attorney General, Dan Lungren, said he was pleased with the Federal court's ruling.
"We remain prepared to oppose any other Federal or state action that is brought by anyone in any venue, with the exception of a request for a Federal stay by David Mason himself, a move he has to this point consistently opposed," Mr. Lungren said.
After Mr. Mason had abandoned all appeals of his death sentence, his former lawyers had requested the stay of execution, which had been imposed by a Federal judge on Aug. 3, in an effort to buy time to appeal a ruling that Mr. Mason was mentally competent to make such decisions.
In a decision written by Judge Proctor Hug Jr., the panel ruled unanimously that the Aug. 3 ruling on competence was supported by findings of a court-appointed psychiatrist and by Mr. Mason's own testimony.
The court left the stay in place until 4 P.M. Monday to allow Mr. Mason's former lawyers to seek a further stay from an 11-judge panel of the appeals court. The only possible appeal after that would be to the United States Supreme Court.
Mr. Mason, 36, is scheduled to be executed early Tuesday for the robberies and murders of four elderly neighbors in Oakland in 1980 and the strangling of a fellow inmate at a county jail in 1982.
Last-Minute Turnabout
He declared this spring that he was willing to accept his punishment and opposed all further appeals. But on Thursday, Mr. Brady, with Mr. Mason's consent, asked the state's highest court to stay the execution and grant a new trial.
Mr. Brady said that Mr. Mason's public defenders at his 1983 trial, believing he was threatening them, concocted a claim that he had plotted to kill them, seize hostages in court and escape. They got a private lawyer to feed the story to the sheriff's office while concealing their roles, Mr. Brady said.
That created a conflict of interest that tainted the trial, and led to a search of Mr. Mason's cell that produced incriminating evidence, Mr. Brady argued. The Alameda County public defender and the private lawyer implicated by Mr. Brady denied the accusations.
On Friday the State Supreme Court denied the stay, dismissed the appeal and exonerated Mr. Mason's trial lawyers.
Even if Mr. Brady's accusations were true, the court ruled, they failed to show that Mr. Mason had been represented inadequately or that his lawyers had done anything improper in notifying the authorities of what they perceived to be a security threat.
"The allegations suggest nothing more than that counsel acted to preserve the confidences of their client while fulfilling their duties as officers of the court," the Justices said.
At a news conference after the decision, Mr. Brady described Mr. Mason as subdued and, despite his determination not to pursue further appeals, afraid of dying in the gas chamber.
"I'm sure that David Mason is very afraid -- that, inside, David Mason is very scared and he is hurting," Mr. Brady said. "That's a natural product of what he has to go through in the next few days."
5 F.3d 1220
David Edwin MASON, By and Through Charles C. MARSON,
Petitioner-Appellant,
v.
Daniel E. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
David Edwin MASON, Petitioner,
Randy Alana, Patrick Tafoya and Lee Terry Farmer, as next
friends of David E. Mason, Applicants in
intervention/Appellants,
v.
Daniel B. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
Nos. 93-99008, 93-99009.
United States Court of Appeals,
Ninth Circuit.
Aug. 20, 1993.
ORDER
Having considered the merits of the above captioned appeals and having filed an opinion herein and the court being aware that a stay of execution was entered by the district court which shall remain in effect pending further action by this court and it appearing that further time may be required for consideration by this court whether to grant en banc reconsideration, now therefore, it is,
ORDERED that the clerk of this court, unless otherwise directed by an en banc court, shall issue the mandate at 4:00 PDT on August 23, 1993 and on that date and at that time, the stay of execution entered by the district court shall be of no further force and effect.
Appeal from the United States District Court for the Northern District of California.
Before: HUG, POOLE, and BEEZER, Circuit Judges.
HUG, Circuit Judge:
The petitioner, David Mason, was convicted in California state court of five murders and received the sentence of death on each count. The judgment was affirmed on appeal by the California Supreme Court. Three petitions for writs of habeas corpus were denied by that court.1
Mason, through his attorney Charles Marson, filed a petition for a writ of habeas corpus in the federal district court. Prior to any hearing on that petition, Mason informed his counsel Marson that he did not want to proceed with the federal habeas petition, and that he desired to discharge Marson as his attorney because Marson did not agree with this course of action. Attorney Marson resisted the dismissal of the action, fearing that Mason was not competent to make such a decision.
The district court appointed a psychiatrist, Dr. Kessler, to examine Mason and to aid the court in its competency determination. The district court also granted Mason's request to have an attorney of his choice, Michael Brady, represent him at the competency hearing. At the competency hearing attorney Marson, attorney Brady, the deputy attorney general Rivlin for the state, and Mason himself took part.
Reports and testimony from Dr. Kessler and from Dr. Wayland, Dr. Fromming and Dr. Foster were considered along with substantial documentary evidence. After due consideration, the district court entered an order finding Mason competent to substitute counsel and to dismiss the petition. Thereafter, on application of Mason and his substitute counsel, the court entered its order dismissing the petition. We affirm the district court.
Although there are numerous procedural issues in this case, the controlling determination is whether the decision of the district court finding Mason mentally competent to substitute counsel and dismiss the petition was reversible error.
I.
* Detailed Facts
David Mason, a California prisoner, was convicted of five counts of first degree murder with special circumstances and sentenced to death in the Superior Court of Alameda County, California. The Supreme Court of the State of California affirmed Mason's conviction and sentence, People v. Mason, 52 Cal.3d 909, 277 Cal.Rptr. 166, 802 P.2d 950, cert. denied, --- U.S. ----, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). That Court has subsequently rejected three habeas corpus petitions involving Mason.
On April 23, 1992, attorney Charles C. Marson, Mason's appellate counsel in the state proceedings, filed a federal habeas corpus petition on behalf of Mason in the United States District Court for the Northern District of California. Mason verified the petition one day later. In response to the petition, the district court stayed Mason's execution date of April 28, 1992 and appointed Marson to represent Mason in the federal proceedings.
On January 4, 1993, Marson filed an amended habeas corpus petition which Mason did not verify. In a letter to the district court dated January 7, 1993, Mason indicated that he was satisfied with the decision of the California Supreme Court, that he had decided not to seek further relief in federal court, and that he had neither the need nor the desire to be represented by Marson. On January 21, 1993 the State of California filed a motion to dismiss Mason's petition.
On February 4, 1993, Marson filed opposition papers and declarations from several mental health professionals stating that Mason was suffering from mental illnesses that were affecting his decision to withdraw his petition. The district court appointed an independent psychiatric expert to examine Mason and scheduled a hearing to determine Mason's competency.
Prior to the competency hearing, the district court received several letters from Mason reiterating his desire to both abandon federal review of his death sentence and to dismiss Marson as counsel. Mason complained that Marson had ignored his objections and continued the federal proceedings because Marson was personally opposed to the death penalty.
For this reason Mason contended that Marson would be unable to adequately represent Mason's interests. Mason indicated that he had retained his own attorney, Michael Brady, and requested the court to appoint Brady as his counsel. On March 5, 1993 the court recognized the appearance of Brady as counsel for Mason, but ordered Marson to remain Mason's court-appointed attorney until his mental competence was determined.
On May 13 and 14, 1993, the district court conducted a hearing to determine Mason's competency, in which the counsel--Marson, Brady and the Deputy Attorney General--were given the opportunity to present and cross-examine witnesses. At that hearing, Marson called as witnesses Dr. Kathleen Wayland, a psychologist who had interviewed Mason in November of 1992 and Dr. David V. Foster, a psychiatrist who had not examined Mason, but who had reviewed the evidence submitted in connection with the hearing and other documents.
Both experts testified that Mason was suffering from post-traumatic stress disorder ("PTSD") and that this condition affected his decision to abandon his petition for habeas corpus. Marson supplemented this testimony with declarations already in the record from Dr. Wayland, Dr. Foster, Dr. Karen B. Fromming, Dr. Jules Burstein, and three of Mason's sisters, Darlene Mason Hill, Linda Sue Mason Miller, and Joy Louise Mason. Marson introduced additional declarations, copies of paintings made by Mason and other documents.
The State called Dr. David Kessler, the psychiatrist appointed by the court to independently evaluate Mason. Prior to the hearing, Dr. Kessler had conducted an examination of Mason and submitted a report to the court concluding that Mason was mentally competent. During the hearing, Dr. Kessler maintained this view, testifying that Mason did not suffer from PTSD.
Dr. Kessler stated that Mason has suffered throughout his life from an antisocial personality disorder, but that this had not affected his decision to forego federal habeas review. Finally, the State called Mason himself. In examination by both the court and counsel, Mason testified concerning his decision and its consequences.
On June 7, 1993, the district court entered an order finding Mason competent to substitute counsel and to dismiss the action. The court stated that it would dismiss his petition upon receipt of a request to do so signed by Mason and his counsel, if any. On June 10, Mason filed a request that Michael Brady be substituted for Charles Marson. On the same date, Mason filed a request to dismiss his petition and vacate the stay of execution. On June 14, the district court relieved Marson as counsel of record, substituted Brady, and granted a voluntary dismissal of the petition pursuant to Fed.R.Civ.P. 41(a)(1).
The Superior Court thereafter issued a death warrant setting Mason's execution date for August 24, 1993 at 12:01 a.m.
On June 28, 1993, Marson filed a motion to set aside the judgment pursuant to Fed.R.Civ.P. 59(e). On July 22, 1993, three of Mason's siblings, and three persons, Randy Alana, Patrick Tafoya and Lee Terry Farmer, filed a motion to intervene in the Rule 59(e) motion as next friends, through their attorney Richard Mazer. Shortly thereafter, Mason's siblings withdrew from the next friend petition. A hearing was held on July 30, 1993, at which time the district court denied the motion to set aside the judgment and the motion to intervene.
On August 3, 1993, the district court granted Marson's request for a certificate of probable cause and a stay of execution pending appeal, but denied a similar request made by the next friends. Marson now appeals from the judgment entered on June 14, 1993 on behalf of Mason. The next friends appeal both the June 14 judgment and the denial of their motion to intervene. The State has filed an emergency motion to vacate the stay of execution.
II
Procedural Posture
This case presents an unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner's competence. To add to the unusual character of this case, petitioner sought and was granted permission to have counsel of his choice represent him in upholding his competence to guide the course of his litigation. Marson was the court appointed attorney who had represented Mason in his appeals to the California Supreme Court and had filed the petition for habeas corpus in the federal district court.
As his attorney he believed he had an ethical obligation, acting in the best interest of his client, to contest Mason's competency to dismiss his action. We have recognized the appropriateness of such action by attorneys in similar circumstances. See Lenhard v. Wolff, 603 F.2d 91, 92-93 (9th Cir.1979) (per curiam).
On the other hand Mason as the petitioner is entitled to guide the course of his litigation, including dismissing his action either on his own or through an attorney of his choice, provided he is mentally competent to do so. Attorney Marson, as a participant for Mason in the proceedings, is also entitled to appeal the court's decision of mental competence, which would otherwise remain unreviewed in a death penalty case. This was recognized by Judge Whyte in granting the certificate of probable cause and the stay of execution.
The appeal of the next friends is far more tenuous, in that a certificate of probable cause was not granted. Furthermore, the next friends did not participate in the competency hearings, but only at the stage of the motion to amend or alter the judgment. In order to have standing, the next friends would have to establish the incompetence of Mason, in any event. See Whitmore v. Arkansas, 495 U.S. 149, 164, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990); Brewer v. Lewis, 989 F.2d 1021, 1026 (9th Cir.1993). Because we hold that the district court did not err in finding Mason competent to dismiss his federal court action, we need not delve into the procedural issues relative to the appeal of the next friends.
III
Competency Determination
Initially we must commend District Judge Whyte for the manner in which the proceedings in the district court were conducted. Adequate time for preparation was afforded. A psychiatrist was appointed by the court. The court noted: "In order to ensure impartiality the court elected to appoint a psychiatrist other than one recommended by one of the parties." All interested parties were able to present all the relevant evidence. Mason was afforded counsel of his choice to represent his point of view and he, Marson, and the State's Attorney were each given full opportunity to examine the witnesses. The district judge thoroughly and carefully questioned Mason himself.
This panel of the court has had a full opportunity to consider the excellent briefs of the parties, to review the record before the district court and to hear extended oral argument. The panel appreciates the manner in which this serious matter has been presented to the court.
The district court correctly set forth the standard by which his determination on mental competence must be made.
This court must ascertain whether Mr. Mason has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. Rees v. Peyton, 384 U.S. 312, 314 [86 S.Ct. 1505, 1506, 16 L.Ed.2d 583] (1966).
The district court made the following findings of fact:
1. Mr. Mason is not suffering from a mental disease, defect, or disorder other than possibly antisocial personality disorder.
2. Mr. Mason's capacity to decide to discharge his attorney and abandon this action is not substantially affected by any antisocial personality disorder.
3. Mr. Mason's decision to discharge his attorney and dismiss this action is made freely and voluntarily with a full understanding of the ramifications and the consequences of his decision.
The United States Supreme Court has emphasized the importance of compliance with the dictates of Federal Rule of Civil Procedure 52(a). That Rule provides: "Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." The Court has stated:
Although the meaning of the phrase "clearly erroneous" is not immediately apparent, certain general principles governing the exercise of the appellate court's power to overturn findings of a district court may be derived from our cases.... The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. "In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo." Zenith Radio Corp v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969).
If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous....
This is so even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts....
....
When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.
Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
Although there was conflicting evidence, the testimony of the court appointed psychiatrist, Dr. Kessler, clearly supports the decision of the district court. Furthermore the district court had an opportunity to evaluate the testimony of Dr. Wayland and Dr. Foster in light of the cross-examination and other testimony.
In addition, the district court conducted extensive questioning of petitioner Mason himself. This questioning of Mason of course would not be determinative absent adequate expertise, advice and testimony, but is clearly supportive of the decision of the district court.
On appeal Marson argues that the district court applied an incorrect burden of proof in determining the mental competence of Mason. When a habeas petition has been filed in the federal district court, appropriately invoking the court's jurisdiction and the mental competency of the petitioner is reasonably questioned, it is the obligation of the court to determine the petitioner's mental competence.
Initially sufficient evidence must be presented to cause the court to conduct an inquiry. After that point it is no one's burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition. This is essentially the procedure followed in Rees v. Peyton.
The Court in Rees stated:
Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees' mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court's certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees' mental competence and render a report on the matter to us....
... The District Court will hold such hearings as it deems suitable, allowing the State and all other interested parties to participate should they so desire, and will report its findings and conclusions to this Court with all convenient speed.
Rees v. Peyton, 384 U.S. at 313-14, 86 S.Ct. at 1506-07. The district court followed the same procedure in this case, with all interested parties being allowed to participate so as to assist the court in its determination.
The abandonment of a filed petition is to be distinguished from the situation in which parties are seeking initially to invoke the jurisdiction of the federal court as next friends. In that case, no petition has been filed by the convicted person that properly affords jurisdiction in the district court.
Instead, parties who are foreign to the criminal conviction are seeking to establish their right to invoke the jurisdiction of the district court as next friends of the convicted person. In order to establish initial standing to bring such an action, the burden of proof is on the next friends to show the mental incompetence of the convicted person himself. Whitmore v. Arkansas, 495 U.S. at 164, 110 S.Ct. at 1727; see also Brewer v. Lewis, 989 F.2d at 1026.
Although there are some similarities in this case to that of next friend cases in that attorney Marson seeks to establish the mental incompetence of his client despite his client's wishes, this is not a jurisdictional standing question. Rather Marson is representing Mason's rights in his habeas proceeding in the event that he is actually mentally incompetent to dismiss his habeas petition.
We recognize that the Supreme Court in Medina v. California, --- U.S. ----, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), held that it did not violate due process in a criminal trial to place upon the party claiming incompetence the burden of proving by a preponderance of the evidence that the defendant is incompetent.
This holding under the due process clause of the United States Constitution does not dictate, however, the correct procedure for determining mental competence in a federal habeas corpus proceeding. Such a proceeding is much more akin to that of the procedure followed in Rees v. Peyton in a request to dismiss a petition for certiorari, whereby the district court is to make an independent determination of mental competency.
IV
Conclusion
Under the standard of Federal Rule of Civil Procedure 52(a) as expounded by the Supreme Court in Anderson we uphold the factual determination of the district court that Mason was mentally competent to substitute his attorney and to dismiss his federal habeas action.
We therefore affirm the district court's order dismissing the action and we address the stay of execution in a separate order.
*****
1
During the course of these proceedings the third petition for a writ of habeas corpus was filed with the California Supreme Court and denied on this date. Counsel Brady emphasized at oral argument that Mason desired to have the subject of that petition considered only by the California Supreme Court and that no further filings would be made in federal court. Thus this recent petition to the California Supreme Court has no bearing on the proceedings before us
5 F.3d 1226
David Edwin MASON, By and Through Charles C. MARSON,
Petitioner-Appellant,
v.
Daniel B. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
David Edwin MASON, Petitioner,
Randy ALANA, Patrick Tafoya and Lee Terry Farmer, as next
friends of David E. Mason, Applicants in
intervention-Appellants,
v.
Daniel B. VASQUEZ, Warden of the California State Prison at
San Quentin, Respondent-Appellee.
Nos. 93-99008, 93-99009.
United States Court of Appeals,
Ninth Circuit.
Oct. 6, 1993.
ORDER
The mandate is recalled. The en banc court having completed its duty pursuant to Death Penalty Rule 22-4(e)(3), the en banc court remands this cause to the panel which had initial jurisdiction.
PREGERSON, Circuit Judge, dissenting:
Because I do not believe that the en banc panel completed its duties under Ninth Circuit Rules 22-2(b)(4) and 22-4(e)(2), I respectfully dissent. I also concur in Judge Noonan's dissent.
I. PROCEDURE
Rule 22-2(b)(4) states that, upon a call for en banc review under Rule 22-4(e)(2), the death penalty en banc court, selected for that case, will review the decision of the special state death penalty panel. That en banc court's review shall include not only the review of orders granting or denying applications for a certificate of probable cause and motions for stays of execution, but shall extend to all of the other decisions of the special state death penalty panel, including decisions on the merits.
(Emphasis added.)
On August 23, 1993, the en banc panel issued an order that stated
A majority of the special death penalty en banc court has voted to affirm the order of the special death penalty panel vacating the stay entered by the district court. All stays in the circuit and district courts are hereby vacated.
This order reflects an en banc vote as to the stay of execution only. The en banc court did not review the merits of the opinion issued by the special state death penalty three-judge panel. It is true that an en banc panel member's vote on whether to grant a stay will often reflect that member's position on the merits of the three-judge panel's opinion. But in this instance it was clear that several panel members cast their votes only on the stay. This is not the review explicitly provided for by our death penalty rules.
There are problems with the death penalty three-judge panel's opinion. I believe that the death penalty en banc panel was required to address the merits of the three-judge panel's opinion. Thus, I discuss these problems below.
II. THE MERITS
A. Background
On April 23, 1992, petitioner David Mason filed a habeas petition in federal district court challenging his state murder convictions and death sentence. On January 7, 1993, he informed the district court that he did not wish to seek any further relief in federal court. On May 13-14, 1993, the district court held a competency hearing to determine David Mason's mental competency to make such a decision. On June 7, 1993, the district court issued an order in which it found him to be competent. See Order Following Competency Hearing (N.D.Cal. June 7, 1993) ("Order").
The court then stayed David Mason's execution pending review of its decision on the issue of competency by our court. See Order Denying Motion to Strike, Denying Motion to Amend or Alter the Judgment and Granting Application For a Certificate of Probable Cause And a Stay of Execution (N.D.Cal. Aug. 3, 1993). David Mason's attorney, Charles Marson, thereafter appealed the district court's order to our court.
On August 20, 1993, the special death penalty three-judge panel affirmed the district court's order. I believe that, at the least, this matter should have been remanded to the district court to determine whether David Mason was competent to waive his appeals by applying the burden of proof announced by the three-judge panel.
B. The District Court's Error
The district court held that the burden of proof rested on Attorney Marson to prove that David Mason was incompetent to waive his additional appeals. See Order, at 8-9. The district court cited circuit precedent in "next friend" cases that held that the "burden [of proof] is on the person asserting petitioner's incompetence." Id. at 8 (citations omitted). The court analogized the threshold inquiry of the "next friend analysis" to this case and concluded that Attorney Marson had the burden of proving by a preponderance of the evidence that David Mason was not competent to waive his appeals.1
In contrast, the three-judge panel held that competence "is no one's burden to sustain, rather it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition." See Mason v. Vasquez, 5 F.3d 1220, 1225 (9th Cir.1993) (emphasis added). By concluding that no one had the burden of proving David Mason's competency, the three-judge panel necessarily determined that the district court erred in stating that the burden of proof was on Attorney Marson.
C. Proper Disposition
This being the case, the three-judge panel should have remanded this matter to the district court to determine David Mason's competency by applying the burden of proof enunciated by the three-judge panel--viz. whether Mason, by a preponderance of the evidence, was mentally competent to withdraw his petition and to waive his appeals.
In cases where an appellate court determines that an improper burden of proof was applied, the normal course is to remand so that the evidence can be reexamined in light of the appropriate standard. See Santowsky v. Kramer, 455 U.S. 745, 770, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982); In re Winship, 397 U.S. 358, 367-68, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970); Ng Yip Yee v. Barber, 267 F.2d 206 (9th Cir.1959); Brewer v. Lewis, 989 F.2d 1021, 1031 (Norris, J., dissenting). See also Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 455 (9th Cir.1986) (recognizing that burden of proof affects all aspects of the jury's verdict and that it is impossible to determine whether the erroneous burden of proof was outcome determinative); Matter of Battaglia, 653 F.2d 419, 423-24 (9th Cir.1981) (after concluding that the district court misplaced the burden of proof, the court held that "y placing the burden of persuasion on [the defendant], the district court made the gaps in [the defendant's] proof more damaging than the gaps in the government's proof. This was error."); United States v. Lake, 482 F.2d 146, 149-50 (9th Cir.1973) (erroneous burden-shifting instruction required new trial where there is at least some doubt that the jury misinterpreted the proper allocation of the burden of proof).
Here, the district court applied an improper allocation of the burden of proof to determine David Mason's competency. In so doing, the court placed more weight on the deficiencies in Attorney Marson's proof establishing incompetency than on the government's proof establishing competency. In short, the district court improperly placed the risk of nonpersuasion on Attorney Marson.
Nonetheless, the three-judge panel concludes, that even though the district court said it was placing the burden of proof on Attorney Marson, that in fact the court did not do so when it determined David Mason's competency. The panel does not provide any record cites to support its conclusion. In fact, the district court's application of the incorrect burden of proof pervades its analysis in determining David Mason's competency. See Order, at 8-9, 15, 16, 17, 18.
The district court never found that David Mason had the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation." Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583 (1966). The district court merely found that David Mason was not incompetent. The district court did not affirmatively find that he was competent to waive his appeals.
The district court's error could have easily changed the outcome of this case. This is because "n all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome." Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).
Given the substantial evidence that David Mason had suffered severe trauma beyond the range of usual human experience (e.g., setting himself on fire, intentional collapsing of his own windpipe, slashing his own wrists, attempting to hang himself, and slashing of his own throat), I find it impossible to say that the district court's erroneous placement of the burden of proving incompetency on Attorney Marson could not have affected the outcome in any way.
Indeed, the district court acknowledged as much in its Order Denying Motion to Strike, Denying Motion to Amend or Alter the Judgment and Granting Application For a Certificate of Probable Cause and a Stay of Execution, at 2-3. The court there said that "f the orders of June 7 and 14, 1993, are based on an error of law or fact, this court may have erred in allowing Mr. Marson to be discharged by petitioner." Id. (Emphasis added.)
Moreover, the district court entered a stay of David Mason's execution pending review by our court of the issue regarding the placement of the burden of proof. Id. at 4-5. In so doing, the district court noted that "[o]ne district court has placed the burden of proof on the state at an analogous hearing ... and, although this court disagrees with that holding, the issue is debatable among jurists of reason." Id. at 5. Hence, the district court implicitly acknowledged that the placement of the burden of proof in this case could be outcome determinative.
Accordingly, we should have remanded this matter to the district court so that it could have applied--in light of the three-judge panel's decision--the proper burden of proof to determine David Mason's mental competency to withdraw his petition and to waive his appeals.2
For the reasons set forth above, I respectfully dissent from the en banc panel's order remanding this case to the three-judge panel without addressing the merits.
*****
NOONAN, Circuit Judge, dissenting:
I concur in Judge Pregerson's dissent and add the following:
1. The rules, as carefully constructed to govern cases involving the imposition of death, were not observed.
2. Precedent was not observed. If reasonable jurists can disagree on the merits of an issue involving death, the court should grant a stay so that the matter may be fully considered. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394-95 n. 4, 77 L.Ed.2d 1090 (1983).
3. Emergencies and errors of the kind that occurred in this case are created by the exigencies of state law setting a twenty-four hour period in which the death warrant is good. Cal.Penal Code Sec. 1227 ("appointing a day upon which the judgment shall be executed"). The State of California is capable of legislative action that does not impose such draconian limits. See id. Sec. 1227.5.
The state law should be conformed to the requirements of the United States Constitution and the review that habeas corpus provides thereunder.
*****
1
The district court had already announced--well before the hearing itself--that the burden of proof ultimately rested with Attorney Marson. See Points and Authorities in Support of Motion to Alter or Amend the Judgment, June 28, 1993, at 2 (Brief of Appellant Attorney Marson)
That the district court put the burden on Attorney Marson is further illustrated by the district court's conclusion that "[a] preponderance of the evidence does not show, however, that the remaining diagnostic criteria of PTSD or any other mental illness have been manifested." Order, at 15.
2
There is, of course, an additional question whether the three-judge panel erred in holding that proof of competency was "no one's burden to sustain." Because one party must bear the risk of nonpersuasion, it seems difficult to conclude that proof of competency is "no one's burden to sustain" and at the same time hold that "it is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition." Mason, at 1225 (emphasis added)
