(concurring).
I concur fully with Judge Bastian’s opinion but I think a word of admonition may well be in order at this point, since this case is in many respects typical of many of our criminal appeals which are taken at public expense with counsel appointed by the court. In the trial of this case trial counsel asked the detective if he recalled a telephone conversation in which the officer told defense counsel that he did not see the defendant with anything in his hand; that he hadn’t seen him drop anything; and that what he said he saw was the defendant making some sort of motion which he interpreted to be a pitching motion, and that he didn’t see him drop anything. The officer categorically denied such a conversation.
No effort was then made by defense counsel to follow this line of questioning with proof of the alleged “facts” or of the assumptions implicit in the questions. To be sure, it might have been awkward for the lawyer to take the stand and testify, but if he was not prepared to do this, even if it meant withdrawing from the case he should not have asked the questions. Counsel asking such questions with no intention of following them up if the answers were negative, would be subject to severe censure. We assume in this case that it was a thoughtless “shot in the dark” attributable perhaps to lack of experience in the highly practical and difficult art of trial advocacy. Utterances similar to this when made by a prosecutor have led us to reverse criminal convictions. Cf. Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957).
It must be remembered that there is not a dual standard of conduct, one for the prosecutor and one for the defense counsel. Nor is there a different standard of professional duty as between paid and unpaid. counsel. The fact that improper conduct of a prosecutor is more readily dealt with by reversal of convictions should not lead defense counsel to believe that such conduct goes unnoticed by this court.