(concurring) :
I concur in the opinion of Judge MARSHALL and also in the opinion of Judge HAYS.
I think it important in the disposition of this appeal that assigned counsel was uncertain that he was to have trial responsibilities until shortly before the case came on for trial. Although I *141am of the belief that the trial judge could well have made findings that that was the situation, I agree with Judge MARSHALL that the facts of the case speak for themselves and we can affirm the order below without remanding for further findings.
HAYS, Circuit Judge (concurring): The area in which this case lies is a delicate and difficult area and one in which we should be careful not to exceed the limits established by the Supreme Court. We would do well to take heed of Mr. Justice White’s warning in Brady v. Maryland, 373 U.S. 83, 92, 83 S.Ct. 1194, 1199, 10 L.Ed.2d 215 (1963) (concurring opinion):
“I * * * would not cast in constitutional form a broad rule of criminal discovery. Instead, I would leave this task, at least for now, to the rule-making or legislative process after full consideration by legislators, bench, and bar.”
However, there are aspects of the present case which seem to me to bring it within the scope of the rules which have been laid down.
The prosecution must have been aware of defendant’s difficulty in securing counsel and of the fact that assigned counsel had only a week in which to prepare the defense. The prosecutor must have known that defense counsel was unaware of the existence of the two eyewitnesses whose testimony would have been so vital to the defense. In these circumstances failure to reveal the existence of this evidence can be considered the equivalent of suppression.
In the light of the directly conflicting statements of the Colosantis, the prosecutor had the strongest reasons for questioning the reliability of the two eyewitnesses whom he called upon to testify at the trial. While he could not, of course, know for certain that their testimony was false or mistaken, he did know of the existence of contradictory evidence which cast grave doubt on the validity of the evidence he chose to present. Instead of allowing himself to be put in the position of concealing his doubts, he should, in fairness, have revealed them, at least to the extent of informing the court of the conflict.
Thus by suppressing evidence which he had reason to know was not available to the defendant, and by presenting evidence about which he must have had the gravest doubts, the prosecutor denied to this defendant that fairness which is a requirement of due process.