(dissenting).
As the administration of justice requires not only that the proceedings be proper, but that they appear to be, and it is this policy which undergirds my approach, it is appropriate that I make explicit that which is otherwise taken for-granted in Appellate Court opinions which, without the slightest disparagement of the integrity of the Judge, examine and then reverse the action of a Trial Judge. This is especially so where the fact of my dissenting might itself be thought by some to introduce a disturbing factor questioning the intrinsic fairness of the trial.
*311I join wholeheartedly in the majority’s acceptance of the certainty that this perjury trial was fair and impartial in fact. Perhaps I appreciate this better than others since in writing for the Court in Adams v. United States, 5 Cir., 1961, 287 F.2d 701, I had to examine with painstaking detail that trial record. That and my close association with Judge Cars-well—much of it while sitting with this ■Court—and the opportunity of seeing his work as it is exposed to appellate review, I am convinced that in fact this trial was in every respect fair and impartial. For he is that kind of man. He is that kind of Judge.
But that is not the question. The ■question is whether the admitted close connection with the very circumstances which gave rise to this conviction deprived the Judge presiding over that trial of the unqualified appearance of impartiality demanded by the disqualification statute, 28 U.S.C.A. § 455, and which ■codally reflects our fundamental notions ■of a fair trial before -a neutral umpire.
Several things do seem unusual in the ■Court’s approach. By italics, thrice used, it stresses greatly that the defendants claim merely that at the time ■of the perjury trial they did not know the significance of the facts concerning Judge Carswell’s recent prior connection with the case. The implication seems to be that the defendants—untutored laymen—are charged not only with knowledge of the facts which their trial counsel, as local lawyers “doubtless” had,1 but with the full understanding of the legal meaning, purpose and significance of such facts. While imputing wisdom of a kind we know is fictional to these non-lawyers, the Court gives the benefit of such unawareness to the Judge, a skilled and articulate lawyer. For the Court states, “Here there was neither prior knowledge of the facts nor prior interest in an issue arising out of the fact, since it is taken as conceded on this record that Judge Carswell knew nothing about having had any prior connection with either Adams or his wife at the time he presided over the perjury trial as to which this motion is now presented.” 302 F.2d 310.
I am at a loss to understand how we conclude that Judge Carswell knew nothing of the prior activity-—-that is, was not aware of the “significance” of what he was doing. The indictment in the perjury trial charged expressly that the perjury took place on April 10, 1958, in a Federal trial at Marianna, Florida.2 *312Thus Judge Carswell; at the time he took the defendant’s plea of not guilty, at the outset and during their entire trial, knew that at a time when he was United States Attorney, this criminal act took place within the jurisdiction committed to his personal and nondelegable responsibility.
But it was more than this. The crime of perjury was not constructed by actions which took place 'subsequent to Judge Carswell’s accession to the bench. Hence the facts emphasized by the Court that the “file touching on an investigation into the testimony given by Adams and his wife” was opened subsequently, or that a “report of investigation was made later,” 302 F.2d 308, which led to the indictment in September 1958 (and November 1959) are beside the point. The offense was perjury. The perjury was at the trial in which United States Attorney Carswell was the prosecutor—whether he was present or not. If perjury was committed, it was committed then and there, not elsewhere or later. What—and all—the subsequent investigation did was perhaps uncover some corroborative proof showing that on the liquor violation trial, the defendants’ testimony was knowingly false.
Far from being something “new,” i.e., a matter of which Judge Carswell had not “been of counsel,” the very same fact was in dispute. For the perjury trial was but a playback (with additional legal sanctions) of the Government’s case in the .liquor violation trial: Adams was prfesent at the time the automobile carrying illegal whiskey was stopped and searched; he was not, as he and his witnesses testified, attending a birthday party many miles away.
Indeed, it was the unique similarity of the factual issues presented in the liquor violation trial and the perjury trial which required the extended opinion of this Court in its exposition of why the jury verdict of acquittal at a second liquor violation trial did not amount to res judicata concerning the perjury at the earlier trial. Adams v. United States, 5 Cir., 1961, 287 F.2d 701. Of course, as we there spelled out, the offense of perjury is distinct, but the legalistic issue, “did Adams swear falsely,” required that the Government establish beyond a reasonable doubt that the testimony was untrue, and knowingly so.
But it was this controversy—where was Adams, at the moonshine automobile, or the birthday party?.—which had also been at the core of the liquor trial. And on it, United States Attorney Carswell, by the demand of the statute, 28 U.S.C.A. § 507, the oath of his office, and his duty as an advocate, had taken sides. He—through the voice of his Assistant—was contending, as he properly could, that Adams was actively transporting moonshine and was not reveling at a distant party. His duty as the Government’s advocate was to press this partisan view with all of the vigor, re*313sourcefulness, and skill that honorable deportment of an intelligent conscientious, responsible counsel would permit.
It is probably true that lawyers, from discipline and training, have an intellectual capacity to view objectively that which they formerly maintained, personally or vicariously, as partisans. But our system does not work that way. Our .system frees the person of such a new-made umpire of that awful responsibility. Doing so, it insures that the mind of the Judge, as the mind of the juror, has not been effected or even possibly influenced by former positions taken concerning the very transaction and issue upon which he must now pass.
Thus it was that the Honorable Harxold Carswell, as Judge Carswell, was required to pass on the sufficiency of the evidence (and all related problems) .as to which in the role of United States Attorney Carswell, he had twice taken an advocate’s position before a Grand and Petit Jury.3
Since the Court properly makes no effort to insulate the District Attorney from the official (and honorable) actions ■of his Assistants, its holding that Judge ■Carswell was not “of counsel” has to rest ■on the fact that this was not the same case “because this case was not commenced until months after he had resigned as United States Attorney.” 302 F.2d 310. Besides being factually erroneous for the reasons I have summarized, this approach is too narrow, and .alarmingly so. It tests it in terms of the identity of the case style, rather than the identity of the factual situation. United States v. Maher, D.Me., 1950, 88 F.Supp. 1007; United States v. Vasilick, 3 Cir., 1947, 160 F.2d 631.
When it comes to the question of “a substantial interest,” I am in agreement with the Court that this should be construed “broadly enough to comprehend the interest that any lawyer has in pushing his case to a successful conclusion.” 302 F.2d 310. This is not just a polite genuflection toward cherished professional habits. It is the very essence of our adversary system which works only when the role of each is carefully preserved. Kaye v. Spach, 5 Cir., 1962, 302 F.2d 298.
Indeed, once we reject—as it must be —the assumption that Judge Carswell did not “legally” know that the defendants had been prosecuted by his office in the case in which the perjury occurred, the Court itself states what the decision should be. This is spelled out both in plain words and in its reiteration of the same, principles forecast by us in Roberson v. United States, 5 Cir., 1957, 249 F.2d 737. The Court states: “In the interest of making absolutely certain that the trial judge acts with complete impartiality, we might well hold, if such a record were before us, and we have little doubt but that the distinguished trial judge himself might have held, on such a record, that if he had known at the time he tried the Adams ease for perjury Adams had previously been prosecuted by his office in the case in which the alleged perjury occurred, it would be appropriate for the district judge to bow out of the case.” 302 F.2d 310.
This is an important declaration. It is so even though stated in conditionals and in permissive terms closely identified with voluntary action by a trial Judge in such a situation. It is precisely because the effectuation of the policy of the really neutral umpire depends largely on the self-generated voluntary acts of a Judge in recusing himself where there is a shadow of possible disqualification that I think it was fundamental error for Judge Carswell to have presided at the trial. I think this has been compounded by his having determined the § 2255 attack on his disqualification. The statute, 28 U.S.C.A. § 455, no longer, as it did under *314prior acts, leaves this to the “application by either party.”4
The Judge will, and must, be in most cases his own enlightened conscience. And the judiciary, through its organized voice, resists contemporary proposals which would put this in the hands of parties or counsel and automatically relieve the questioned Judge of the power or the duty to weigh this serious matter of his own disqualification.5 Left so much as it should be to the Judge, we should be careful that in laying down standards which serve in this area as an expression of a living ideal, our actions in acquiescing in a fait accompli do not overpower our words.
Finally, I think the Court makes a too-easy and unarticulated disposition of the so-called waiver. It begins with an assumption (see note 1, supra) that the defense counsel at the perjury trial knew of this former activity of Judge Cars-well. Doing so involves two things. First, it puts disqualification of a Judge not on the Judge where the statute places it, but on counsel. That represents a retreat to the former law (see note 4, supra). Next, it assumes that this is the kind of “right” which counsel can waive for a client in a casual manner. This Court has recognized, of course, that under our system so much is committed to counsel. In the absence of a substantial indication of misconduct amounting to a breach of duty to defend, we must, and do, hold defendants to the consequences of tactical or strategic actions taken by counsel, since the Judge ceases to be a Judge and becomes an advocate when he weighs the wisdom of a particular course, or would undertake to prevent counsel from taking a given action. Gray v. Ellis, 5 Cir., 1958, 257 F.2d 159, cert. denied 358 U.S. 912, 79 S.Ct. 241, 3 L.Ed.2d 232; Kennedy v. United States, 5 Cir., 1958, 259 F.2d 883; Floyd v. United States, 5 Cir., 1958, 260 F.2d 910; Horne v. United States, 5 Cir., 1959, 264 F.2d 40; Georges v. United States, 5 Cir., 1959, 262 F.2d 426. At the same time we have recognized that there are some rights of so vital á nature that the record must give assurance-that the waiver was that of the defendant acting after full professional advice-from his counsel with at least some understanding of the significance of the course pursued or the right forsaken. Hence, before a defendant will be deemed to have waived objection to trial by a petit jury infected by an unconstitutional exclusion for race, the record must show that the defendant, not just his counsel, took the action, deliberately and after advice. United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, 79, 83.
Surely a trial by a Judge who not only is fair and impartial, but who meets the-requirements of the statutory policy designed to assure impartiality and the appearance of it, is such a right, persona! to the defendant, and which he alone may waive. It does not lie in counsel’s power to determine whether the Judge is to be excused from the duty imposed on him for self-determination of his possible disqualification because of facts either known to him or of which he cannot es*315■cape immediate accountability. Nor does it lie in counsel’s power to determine for the accused that in his—the lawyer’s— judgment a trial before such a Court is as good as one which meets the high ■demands of the law.
The stream of justice must be kept ■pure. Untruth contaminates it. Adams and all other perjurers must be vigilantly prosecuted and if guilty, convicted. But it is more important that Adams be tried and convicted by a Court presided over by a Judge as to whom it may not be said that in a prior day, in another role, through persons for whose acts he is accountable, he took positions which prejudge a critical issue now about to be tried.
I therefore respectfully dissent.
. The Court states: “Of course, counsel for the appellants at the time of the perjury trial have not denied, and they doubtless are unable to do so, that they knew of the fact that the judge then sitting had been the United States Attorney at the time that the alleged perjury had been committed.” 302 F.2d 309.
. The indictment charged that on April 10, 1958, in the trial for liquor violation held at Marianna, Northern District of Florida:
Count One
Defendant “Adams * * * did wilfully testify falsely * * * that on October 23, 1957, he attended a birthday party * * * in Bainbridge, Georgia, * * * whereas, in truth and in fact, * * * defendant Z. A. Adams * * * well knew that he did not attend said party * *
Count Two
Defendant “Adams * * * did wilfully testify falsely * * * that on Oe'tober 23, 1957, on his way home from a birthday party * * * in Bainbridge, Georgia, he * * * picked up one George Adams * * * whereas, * * Adams, then and there knew that he did not pick up the said George Adams and that he was swearing falsely.”
Count Three
Defendant “Jean Adams * * * did wilfully testify falsely * * * that during October 1957, she and her husband attended a birthday party * * * in Bainbridge, Georgia * • * whereas, in truth and in fact, * * * Jean Adams * * * well knew that neither she nor her husband Z. A. Adams, attended said party * *
Count Four
Defendant “Jean Adams * * • did wilfully testify falsely * * * that on October 23, 1957, on their way home from a birthday party * * * in Bainbridge, Georgia, she and her husband * * * picked up one George Adams * * * whereas, * * * Jean Adams, * * * knew that she and her said husband did *312not^ pick up the said George Adams
Count Five
Defendants * * * Z. A. Adams and Jean Adams * * * did wilfully * * procure and suborn * * * Virginia Alday Ezell * * *, to commit perjury * * * by inducing the said Virginia Alday Ezell to falsely swear * * * that on October 23, 1957, she and her husband, H. L. Ezell, had a birthday party at their home in Bainbridge, Georgia, and that * * * Z. A. Adams and Jean Adams, attended said party during all of the period between 6:30 P.M. and 11:30 o’clock P.M., whereas * * * the said Virginia Alday Ezell * * * knew that neither * * * Z. A. Adams and Jean Adams, attended such party
Count Six
Defendants “ * * * Z. A. Adams and Jean Adams * * * did wilfully * * by inducing * * * H. L. Ezell to commit perjury * * * by inducing * * H. L. Ezell to falsely swear * * * that on October 23, 1957, he and his wife, Virginia Alday Ezell, had a birthday party at their home in Bainbridge, Georgia, and that * * * Z. A. Adams and Jean Adams, attended said party during all of the period * * * whereas * * * H. L. Ezell * * * knew that neither * * * Z. A. Adams and Jean Adams attended such party * *
. The original indictment charging violation of the Internal Revenue Laws concerning moonshine whiskey was on February 7, 1958. The trial of those charges resulting in a mistrial was on April 10, 1958. This was the trial in which it was later found that perjury and subornation of perjury was committed. Judge Cars-well qualified and assumed his duties as Judge on April 18, 1958.
. Former 28 U.S.C.A. § 24 prescribed that:
“Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel * * * as to render it improper, in his opinion, for him to sit on the trial, it shall be his duty, on application Z>y either party, to cause the fact to be entered on the records of the court; * * (Emphasis supplied) Upon that being done the matter was then to be submitted to, and acted upon, by the “senior circuit judge” of the Circuit. See In Re Fox West Coast Theatres, S.D.Cal., 1936, 25 F.Supp. 250; Utz & Dunn Co. et al. v. Regulator Co. et al., 8 Cir., 1914, 213 F. 315; Rose v. United States, 4 Cir., 1924, 295 F. 687; Voltmann v. United Fruit Co., 2 Cir., 1945, 147 F.2d 514; Borough of Hasbrouck Heights, N. J., v. Agrios, D.N.J., 1935, 10 F.Supp. 371.
. See Reports of the Proceedings of the Judicial Conference of the United States, Annual Report of the Director of the Administrative Office of the United States Courts, 1961, p. 68-69, regarding the proposed amendments to statutes on disqualification of a judge.