(dissenting).
There is not the slightest question as to the guilt of the accused. Yet I have been much disturbed throughout an extended consideration of the points urged upon us. My great respect for the judgment of the majority who heard this case with me served to deter an earlier disagreement, but with great deference I am impelled to that course. “A defendant in a criminal case may not legally be found guilty except in a trial in which his constitutional rights are scrupulously observed. No conviction can stand, no matter how overwhelming the evidence of guilt, if the accused is denied the effective assistance of counsel, or any other element of due process of law without which he cannot be deprived of life or liberty,” as Circuit Judge Wilbur K. Miller wrote in Coplon v. United States, 1951, 89 U.S.App.D.C. 103, 114, 191 F.2d 749, 760, certiorari denied, 1952, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690. Circuit Judge Proctor, writing in the same case said: “Precious though the right to aid of counsel may be as a safeguard to life and liberty, it is not a fetish to be worshiped blindly,” Id., 89 U.S.App.D.C. at page 115, 191 F.2d at page 761, which was not conducive to certainty in my mind. Yet I have an abiding doubt, and I feel bound to express it.
The jury was told at the very outset that the defendant Harvey and his trial attorney, Kayson, had met in the latter’s office with one Patricia Brown who had become a drug addict by connivance of the accused; that she was prevailed upon to take heroin in the lawyer’s office after which she was handed a typewritten statement which the attorney exhorted her to memorize; then defense counsel coached her as to the manner of presentation of her testimony and as to how she might induce reliance upon and credence in the alibi she was to help establish.
In part, such was the nature of an outline of the Government’s case, clearly inculpating the defense attorney Kayson. *333Casting him then as the perpetrator of a heinous offense, one which undermines the foundations of our whole system of seeking justice through trial, the Government tainted the defense ab initio. Had there been a bench conference in which the judge could have been apprised of the character and extent of the offense of which the Government intended to offer proof, I have no doubt he would have postponed the trial until the entire circumstances could have been explored. An indictment of the defense counsel and of Harvey jointly for the subornation of perjury and for fraud upon the court might have seemed desirable. Substitute counsel could have been procured, or at the very least, the accused could have been advised as to his right to the effective assistance of counsel, for failure to exercise which he would be deemed to have waived it. Rather, zeal in prosecution and anxious desire to convict Harvey were allowed to transcend the demands of justice on the whole case. Surely the integrity of the court demanded some inquiry into the conduct of an attorney thus charged. While defense counsel objected, pointing out the prejudice to the accused, he did not withdraw from the case nor move for a mistrial. The failure of counsel did not preclude the trial judge from acting, sua sponte, nor, if it be true that the accused was prejudiced, are we limited in noticing plain error. Cf. Brasfield v. United States, 1926, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345. I do not read Berger v. United States, 1935, 295 U.S. 78, 89, 55 S.Ct. 629, 79 L.Ed. 1314, to the contrary simply because the case against Harvey was “strong.” And see Coplon v. United States, supra.
Due process in criminal cases requires not only that the accused be entitled to representation by counsel but the assistance shall be “effective.” Indeed, this court specifically has ruled that “Deprivation of those fundamental rights goes to the essence of a fair trial . . ..” Mason v. United States, 1951, 90 U.S. App.D.C. 1,193 F.2d 23; Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. To paraphrase the Supreme Court, Id., 315 U.S. at page 76, 62 S.Ct. at page 467: How can courts be permitted to indulge in “nice calculations as to the amount of prejudice” arising from the denial of the effective assistance of counsel?
The scheme was to suborn perjury and to perpetrate upon the court a fraud, nefarious and criminal in character. If the extrajudicial conduct on the part of the defense counsel were not to be taken by the jury as established through the testimony of the witness Brown, it was necessarily incumbent upon the attorney to become a witness in the case. He did not do so. That he continued as trial counsel, besmirched and beclouded, is not open to serious question.1
Attorneys are officers of the court. Their status in the course of any trial, and in a criminal case in particular, is thoroughly recognized by the profession and by laymen alike. To the extent and upon the very basis that they are men of honor and free from opprobrium, the weight to be given to their representations in the trial and in argument, and the appraisals which a jury formulates from the multiple incidents sure to arise during a criminal trial, will stem from the assumption that the attorneys’ position is one of probity. This is true no matter how guilty the accused may later be shown to be, no matter how vile the crime with which the accused is charged.
I cannot believe that an attorney can have been so seriously charged as was the case here without the very statement *334having its necessary and derogatory impact on minds of the jury, no matter how skillful, no matter how competent, the defense attorney proved to be. He had to defend himself as well as the accused. His very presence in the case under such circumstances reduced, if it did not destroy, the effectiveness of what otherwise would have been regarded as the “assistance” to which the accused was entitled under the Sixth Amendment. The guaranty contemplates “that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired.” Glasser v. United States, supra, 315 U.S. at page 70, 62 S.Ct. at page 465.
Participation in the scheme by the accused with complicity by the attorney can not serve as a waiver of the conflict of interests made to appear here. In Johnson v. Zerbst, 1938, 304 U.S. 458, 467, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, the Court pointed out that the petitioner had been convicted and sentenced without the assistance of counsel, and that he contended “that he was ignorant of his right to counsel, and incapable of preserving his legal and constitutional rights during trial.” Are we to say that a narcotics peddler, an addict himself, is so aware of the enormity of the offense, however diabolically and criminally conceived, even if by himself, that his procuring the effort through his own counsel is tantamount to a waiver on his part ? 2 Rather, when he had been overreached by his own criminal cunning, it is the more reasonable to conclude that he had no adequate comprehension of the significance of his conduct. In any event, the usefulness of his participating trial defense attorney inevitably was impaired in the eyes of the jury.
Under the circumstances of this case, I cannot believe that the accused had the effective assistance of counsel, and I would grant a new trial.
. The point made by the majority that “fabrication of evidence of innocence is cogent evidence of guilt” is not in question. Nor does this discussion go into other aspects of the trial such as comments by the judge in the presence of the jury, nor into the closing argument by Government counsel where the prosecutor clearly put the attorney as well as the accused on trial as “defendants.” Possible prejudice in such particulars stemmed from the initial error treated in the text.
. “ . . . whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” Johnson v. Zerbst, supra, 304 U.S. at page 465, 58 S.Ct. at page 1023; cited with approval, Glasser v. United States, supra, 315 U.S. at page 71, 62 S.Ct. 457. And see Quercia v. United States, 1933, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321.