(dissenting):
In its technical accuracy, the majority’s statement at the outset of its opinion, that “At no time after the impaneling of the jury did Davis have the assistance of counsel,” is highly misleading. Since in my opinion, the decision of the court below and the majority here combine to approve a strategic pattern for defendants of the future to make a mockery of so-called “law and order” and the courtroom scene where some modicum of orderliness is supposed to prevail, I find it necessary to set forth at some length the events of 1962 as revealed in the State court record.
From date of arrest to date of trial, the facts as set forth in the majority opinion are chronologically correct. However, the only facts relevant to the issue before us are those which bear upon the claim of denial of the right to counsel. The opinion below and that of the majority here concentrate on the conduct of the trial judge and his actions in purportedly depriving the petitioner of his right to counsel. In the opinion of the court below, “The important question here is whether * * * this petitioner, against his wishes, was forced to trial without any counsel retained or assigned, when he insisted throughout he wanted a lawyer, * * * ” To answer this question, the facts must be not only reviewed but also analyzed and interpreted. The judge being analyzed is a distinguished jurist on the Supreme Court of the State of New York who for many years had represented defendants in criminal cases in New York and Brooklyn with outstanding success and who for the past twenty years has served as a judge presiding principally over criminal trials in Brooklyn. The analyzing judges are federal judges from upper New York State, Connecticut and Vermont. The facts to be analyzed must come from the original State court record.
When the case was called for trial on October 16, 1962, Davis, unable to furnish bail, had been in jail for five months. During this period, he had been represented continuously by counsel of his choice, a Mrs. Mott, apparently not a newcomer to the criminal courts. When Davis’ counsel requested a further adjournment, the court denied it, saying “Not after five months.” (Jury trial for Crimes, Am’d VI, U. S. Const, “the accused shall enjoy the right to a speedy and public trial, * * *.”) After reviewing the adjournments since May (each side having made one or more requests) the court said that “in the light of all of these facts, the case must proceed to trial.”
Unable to secure the requested adjournment, Davis’ counsel said, “I don’t have my witnesses here,” to which the court replied, “I will give you an opportunity to get your witnesses.” Counsel then wanted a copy of the complaint in the Magistrate’s Court which had been offered to her the previous day. The court said that it was available. Counsel then asked for a copy of the indictment which the court assured her she *622could have. All this after she had been representing a defendant in jail for five months. Counsel then requested “an adjournment until tomorrow” which the court granted, saying “We can select a jury this afternoon and go ahead tomorrow.” The jury was selected, Davis’ counsel participating therein, but it was not sworn in that day because of counsel’s objection to a juror for cause. The court said, “Look up the law. If I find that she has a justifiable challenge, I will excuse the juror.”
The next day the court asked Davis’ counsel whether she had looked up the law, to which inquiry she responded, “I was sick last night.” The court announced that it had looked up the law, was not sure that counsel was entitled to a challenge for cause, but that it would “exercise my [its] discretion and let you exercise another challenge.” At this point Davis’ counsel said, “Before you go any further, the family of the defendant William Davis has requested me to withdraw from the case,” to which the court replied, “not after the case is started.” Then followed a series of statements on the record which in part are adequately depicted by “The Defendant: Your Honor, I don’t wish to retain this woman any further.” * * * “The Defendant: I fire this woman.” * * * “Mrs. Mott: Your Honor, I have been fired.” * * * “The Defendant: I want a lawyer.”
The jury, as selected, was then sworn. After the jury had retired, there was apparently some somewhat acrimonious discussion between court and counsel in which the court said that it would “not permit these tactics which are intended to wreck this trial.” The People opened by reading the indictment after which a noonday adjournment was taken. Since Mrs. Mott was out of the case and since the jury had retired, the continued acrimony between Mrs. Mott and Judge Leibowitz is of no relevance to the right of counsel question but does support the court’s comment that “You are giving the best evidence of how contumacious you are,” to which Mrs. Mott replied, “That’s just me. I am an old Southerner.”
Relevant, however, is the following colloquy :
The Court: Do you have money to hire a lawyer?
The Defendant: My family will get me a lawyer.
The Court: What lawyer do you want?
The Defendant: I will get a lawyer of my own choosing.
The Court: What lawyer do you want ?
The Defendant: I don’t know yet. I haven’t got the money myself to retain him.
When they send him to me, and I see that he is adequate to defend my case properly, I will accept him.
From the courtroom activities of October 16th and 17th, Davis’ and his counsel’s tactics were most obvious — anything to avoid a trial in Judge Leibowitz’s Part. The judge knew this; the record clearly reveals it. And so with the following comment by the court, a recess was taken until the next morning:
“That would be a fine how-do-you-do, to spend a good part of a day to select the jury, with twenty peremptory challenges that have been exercised by Mrs. Mott, and then at the last minute, to say, T don’t want this lawyer,’ and wreck the trial.
“You are barking up the wrong tree. But to avoid any difficulties, any tec-nicalities, I am going to give you a chance to get another lawyer; but come in with a lawyer tomorrow morning. If not, the case will proceed without a lawyer. You are a cop. You know how to get a lawyer.
“Come here with a lawyer, and if I have to give the lawyer a little recess or adjournment, I will give him an adjournment to prepare the case; but the case will stay right here. If your game is to get this ease out of Judge Leibowitz’s hands, you are barking up the wrong tree.”
*623The next morning, Davis’ brother appeared and announced that he didn’t have time to get a reputable lawyer. The court on the morning of October 18th excused the jury until Monday morning, October 22nd, advising the defendant that in the next four days he would have to get a lawyer or proceed without one.
On Monday morning, Davis’ brother reappeared and announced that he had “contacted several lawyers, but their fee is too high so that I can’t get one at this time.” The court replied, “Then I will assign a lawyer.” * * *
“The case was actually on trial, and during the trial he kicked his lawyer out.
“I gave you all this time to get another lawyer. I don’t want the man to go ahead without a lawyer, but if he does not want me to appoint a lawyer and you don’t want me to assign a lawyer, the case will have to go on without a lawyer.
“If you wish, I will assign the Legal Aid Society.”
The court finding present a lawyer of the Legal Aid Society (Thomas Brett), gave him a brief background of the events subsequent to the opening of the trial and said to the defendant, “Do you want Mr. Brett to represent you ? He is a capable lawyer of the Legal Aid Society.” The defendant answered, “No, sir.”
The court with discerning foresight then stated:
“All right, Mr. Brett. The defendant refuses your aid.
“In this Davis matter, there is no doubt in my mind that this is a patent attempt on the part of this defendant and his advisors, probably his brother who is a cop, to go through the trial and then claim that he was not represented by counsel of his choice. I don’t think he should get away with it. There is no doubt in my mind that they are trying to jockey this case so that at the end of the term it will be tried before some other Judge.
“The case will stay right here.”
Nevertheless, the court granted another two-day adjournment until Wednesday, the 24th, saying to the defend^ ant and his brother:
“You now have until Wednesday. I will give you two more days. I am giving you all the leeway that I possibly can. I am stretching every point, so that if there is a conviction in this case, there won’t be any shenanigans that the defendant did not have an opportunity to have a fair trial. Go ahead and get yourself a lawyer, but that will be the last chance.”
On the 24th the defendant apparently had neither obtained counsel nor altered his refusal to have assigned counsel. The trial proceeded; the People opened; the defendant did not.
Consistent with the court’s prediction, when the first exhibits, two photographs of a house, were offered and shown to the defendant, he said, “I object to everything because I have no representation."
The State Trial
The People’s Case
The People first called the victim of the armed robbery, Frank McNicol. He told a story of meeting a girl at a Bar, going with her to a house, 42 Vernon Avenue, where she knocked on a window, the defendant opened the door, she asked about keys, the defendant said they were “by the sister,” they left, obtained the keys, returned immediately, the defendant came out to the sidewalk, stuck a pistol in McNicol’s back and the defendant and the girl took $95 from his per-soh, he then found a policeman, they returned to the house where he identified the defendant who was then arrested.
The defendant cross-examined thoroughly and in meticulous detail (11 pages of the record) as to all the incidents described on direct and as ably as any seasoned criminal lawyer.
The next witness was Patrolman Alvin Knott, the arresting officer who testified that he went with McNicol (the complainant) to the house, 42 Vernon Avenue, knocked on the window and the defendant came to the door.
*624Again the defendant cross-examined with particularity as to identity and as to the woman.
This was the People’s case.
The Defendant’s Case
The defendant stated that he did not “desire to take the witness stand.” He called as a witness, his father, also a William Davis. The father testified that McNicol came to his house, said that his (Davis’) son had robbed him, that he was an airplane flyer and had to go out of town, that he wouldn’t be there for the trial, that all he wanted was his money back, that he (Davis) told him that he didn’t have any money, that McNicol read a letter which said that the defendant Davis did not want to face this charge and to go and see his father and mother and see if they would take care of him, that another son Oscar also present gave McNicol $20 on condition he wouldn’t press the charges and would sign a statement that it was not a bribe, that McNicol signed the statement and took the $20.
The defendant then said that his other witness was not in court. The judge said that the defendant had had many days to prepare and that his other witnesses had been in court. Nevertheless, the judge said, “If you tell me where this woman lives, I will send somebody out there and bring her here, and if necessary, if she can be found within a reasonable time, I will even postpone the case to give you a chance to bring your witness here.” When the defendant indicated that he wanted this procedure followed, the record discloses the following :
The Court: That shall be done, to the end that all your rights are protected; and if you give me any clue as to where the other woman lives, we will go out and fetch her and bring her down.
You have your father here. He knows Mrs. Mott undoubtedly, and he can get the address from Mrs. Mott if she has the address.
The jury retired and the court again addressed the defendant:
The Court: Even at this late stage of the trial, the Court is perfectly willing and eager to have you get the benefit of the assistance of counsel. You have steadfastly refused to cooperate. There has been a studied plan on your part and on the part of your brother, the cop, to wreck this trial, and you will not get away with it; possibly in the hopes that by the end of the month you will get some other Judge. I know what you are up to.
If you wish, I will have a member of the Legal Aid Society sit down and consult with you, and go over the matter with you, and get his advice. You don’t have to take it, but it is not going to cost you anything. If you want that, I will have that done immediately, and if you need a litle adjournment for an hour or so to go into the matter thoroughly with him, I will be happy to accommodate you, to the end that if the case ends in a conviction, that you won’t be in a position to holler that you were not treated fairly. I am giving you all the leeway and more than you are entitled to.
Don’t for a minute think that you are fooling this old Judge with your tactics, because you are not.
Do you want the help of a . lawyer from the Legal Aid Society? You don’t have to use him if you don’t want him, but you can have him just by saying yes.
What is it you want?
The Defendant: I don’t want a lawyer.
After recess, a court exhibit was received in evidence, a sheet of paper containing the names of the witnesses requested by the defendant, namely, Mar-quetta Frost, and Geraldine Corry. The jury returned. The judge advised the defendant: “Mr. Davis, the witnesses that you desired are here in court. Would you like to talk to them individually and privately ? I will let you do that.” The defendant stated his desire to do so, *625whereupon the judge said, “Take the defendant and the witness, Corry, into the robing room, and let him speak to her privately. He may interview her without the presence of the Court officers.” The defendant acknowledged that he had interviewed the two ladies privately, and the trial recommenced.
Marquetta Frost said that she lived at 42 Vernon Avenue, that she was awakened by the police officer and complainant, who, upon seeing her after she had gotten up, said that she was not the girl connected with the case.
Geraldine Corry testified that she lived at 42 Vernon Avenue, that she delivered hair curlers to Marquetta Frost a little after twelve, that they were putting up their hair until twenty after one and that the defendant was asleep. To a prosecution motion to strike, the Judge, in denying it, said, “I want to give the defendant some leeway. He is not a lawyer.”
At the defendant’s request, the Judge recalled the complaining witness, Mc-Nicol. The defendant inquired as to the witness’ understanding of the meaning of perjury, his place and duration of employment, his salary, his living arrangements with someone other than his wife, and the details of the robbery. He developed the fact that McNicol went with the girl he had picked up at the Bar for the purpose of having sexual intercourse with her.
The defendant then recalled the arresting officer who' said that he remembered only the color of the defendant’s shirt. The defendant stated that he desired to call no more witnesses and, after being advised of his right to take or decline to take the stand, declined. The court made the necessary motions to assure the defendant of his appellant rights.
During his summation, the defendant argued most plausibly that if he had committed the crime, why would he not have fled (as did the woman) instead of staying in his house and opening the door for the arresting officer. He pointed out inconsistencies in the description of his house and claimed a mistake in identity. Lastly, he said that the complainant was the victim of a prostitute. And on objection by the prosecution, the Judge ruled in the defendant’s favor, saying, “It is his argument, and he has a right to make any argument and-draw any inferences that he seeks to draw. You are within your rights.”
The court charged accurately with respect to the elements of robbery, first, second and third degrees, and grand larceny, first degree, and assault, second degree. Apparently, it is not disputed that the charge was not fair, both as to law and factual summary, and that the court did not sufficiently stress that the jury must eliminate race and color from their deliberations. The Judge ended by saying, “The defendant is trying the case without a lawyer. Now let no man in the jury box be motivated in rendering a verdict in the slightest degree with the fact that he is trying his own case. That is his right. If he wants to try his own case, that is his business. It has nothing to do with whether he is guilty or innocent, nothing.” The jury deliberated less than one hour and found the defendant guilty of robbery, first degree, grand larceny, first degree, and assault, second degree.
The Opinion Below
In summary, a federal district court judge has substituted his judgment for that of the five judges of the Appellate Division of the New York State Supreme Court, Second Department, and a judge (now Chief Judge) of the New York State Court of Appeals as to how the trial record should be read and interpreted. The judge implies that Judge Leibowitz should have gone beyond “the limits of ordinary patience” and to have carried “to an extreme, at times, an attitude of forbearance.” In my opinion, Judge Lei-bowitz did both — and to an extreme. The judge characterizes as “inept and amateurish” the defendant’s defense. Yet appellate judges, skillful as trial advocates with their advantage of reflective hindsight, would be hard put to point to a question unasked which would have aid*626ed the defendant. Despite the finding of the court below that throughout the record the defendant requested the assistance of counsel, there is not a single instance, other than previously mentioned, of such a request and there is his affirmative statement, “I don’t want a lawyer.”
It may be very well in theory to say that “the right to choose one’s own counsel is a vital element in that [basic] right” but in practice when a jail case is on the calendar for trial, what is the trial judge to do were a defendant to state that Mr. A or Mr. B (naming two highly publicized criminal lawyers) are his choice, or that he cannot afford the best, or that only if he is released for a year on bail can he earn enough to pay for a lawyer or that his counsel is so occupied with other cases that only an adjournment of six months will permit him to be defended by counsel of his choice? These and many other examples are commonplace to the courtroom scene.
As for trial strategy, the result of the majority’s opinion is a judicial declaration that a defendant has a constitutional right to counsel of his choice and the judge of his choice. Only when this combination is in unison can a defendant be tried. If he is unable to secure the counsel he desires, the judge must adjourn the case; if, when counsel is secured, the judge is not satisfactory, there must be further postponement until the wheel of trial assignment spins as the defendant would have it. Take the actual situation in the Kings County Supreme Court criminal trial calendar in October 1962. Eight judges were assigned to specific criminal parts — all Supreme Court judges, the court reorganization having become effective as of September 1, 1962. All had long judicial experience. Four had served for many years on the County Court (criminal cases). What should Judge Leibowitz have done? He could have said (and, according to the majority, in substance should have said): “I am sorry that you do not wish to have your case tried before me. I know that you know of my reputation, if you are convicted, for enforcing the laws as written by the Legislature by imposing sentences within the limits prescribed by the Legislature. However, let me know what judge you would like to have, and I will try to have him rearrange his calendar to accommodate you. As for counsel, you apparently do not desire Legal Aid or assigned counsel, and are not able to pay for high-priced counsel whom you believe possesses skill in direct ratio to his requested fee. Under these circumstances, I shall have to let you remain in jail until your desires are satisfied.”
This seeming impasse should have been frequently encountered in the past, although each new court decision brings forth new defense tactics so that precedent is often of little value.
In United States ex rel. Higgins v. Fay, 364 F.2d 219 (2 Cir. 1966), the court held that a defendant who during the prosecution’s case wished to discharge his Legal Aid counsel and “get me a paid lawyer” had been “unconstitutionally deprived of his right to counsel.” The defendant there had made no effort to conduct a defense or participate in the trial.
In United States v. Mitchell, 354 F.2d 767 (2 Cir. 1966), the defendant accused of wilful failure to report for induction into the Armed Forces, before the trial commenced asked for time to obtain new counsel. The court held that it was an abuse of discretion for the trial judge to grant only five days to obtain counsel in a not “very simple case,” with “decided First Amendment overtones” and involving “various intricacies of the Selective Service Law”. The defendant there refused to participate, .testify or call witnesses. Although the court held that the defendant’s conduct did not constitute a waiver of his right to counsel, it did say (p. 769):
“The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel or by persistently refusing to select a new lawyer or any lawyer to defend him. The exercise of the right to counsel must be balanced with the *627necessities of sound judicial administration.”
Curiously enough, despite Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), this court has given as serious consideration to the judicially created so-called constitutional right of a defendant to defend himself in propria persona as to the necessity of counsel.
In United States ex rel. Maldonado v. Denno and United States ex rel. DiBlasi v. McMann, 348 F.2d 12 (2 Cir. 1965), the court held that a defendant’s rights had been invaded when he was not permitted in a State court to proceed without counsel. Yet even there the court pointed out that “Once the trial has begun with the defendant represented by counsel [as was the case here], however, his right thereafter to discharge his lawyer and represent himself is sharply curtailed” and that the right of self-representation must be exercised by “unequivocal request” before the jury is chosen because “At this stage there was [is] no danger of disrupting proceedings already in progress.” And most applicable to the case now under review and in my opinion determinative is the statement that “On the contrary the trial judge would have been entirely justified, once their cases had been called, in insisting that the two men proceed to trial at once, with or without the lawyer who had been assigned to them” (p. 16).
This right of self-representation was also stressed in United States v. Plattner, 330 F.2d 271 (2 Cir. 1964). There the trial judge endeavoring to comply with Gideon, appointed Legal Aid counsel “because the petitioner was not schooled in the law.” The court had some difficulty in reconciling “the right of the accused personally to manage and conduct his own defense in a criminal case” with the “now all but universal requirement of the assignment of counsel to indigent defendants” — a “development of a later generation and more enlightened views” but the older generation and less enlightened views won out because the trial judge was reversed for having insisted that the defendant’s rights be protected by counsel.
The situation here is quite akin to that presented in Eelerford v. United States, 309 F.2d 706 (9 Cir. 1962), where the defendant appeared without counsel, was twice granted continuances to obtain counsel, did not desire to have counsel appointed, had the benefit of the court designating a practicing attorney as an “advisor,” proceeded to conduct his own trial and cross-examined witnesses. On appeal he claimed that he had not had the assistance of counsel for his defense. The court said (and in my opinion quite appropriately):
“We think it apparent from the record that after the mandate came down from this court, and until the case finally went to trial, Eelerford was engaging in a cat and mouse game with the court, stoutly maintaining on the one hand that he could not take a pauper’s oath to obtain court-appointed counsel, and at the same time not obtaining counsel for himself. The constitutional guarantee of the right of a defendant to have the assistance of counsel is not thus to be turned into a weapon whereby a defendant can prevent his case from ever being brought to trial” (p. 708).
In United States v. Arlen, 252 F.2d 491 (2 Cir. 1958), the defendant’s counsel before the trial commenced had withdrawn because of the defendant’s failure to pay the balance of his fee. The defendant did not desire a court-appointed lawyer but one “of profound ability who will take a personal interest in my case.” The ease was called for trial, the defendant there, as here, stating: “I would like to get my own lawyer.” There was a day’s adjournment after jury selection (here there were eight days). Judge Lumbard after recognizing that a defendant is entitled to a reasonable time to secure counsel said in the court’s opinion: “he [the defendant] may not indefinitely postpone trial by continued applications for more time to seek representation. Whether additional time should be granted is within the *628sound discretion of the trial court.” The judge below here believed that “It is not my [his] province to question the quality of the evidence presented against the petitioner,” but this “quality” was held by this court in Arlen, to be an important factor, the present Chief Judge saying that the defendant had “intelligently cross-examined government witnesses on several occasions”, that the trial court had allowed him “great latitude in cross-examination and in his statements to the jury”, and that the trial had been conducted by the judge with “scrupulous fairness.” The trial record discloses that Judge Leibowitz here so conducted the trial. The conclusion was reached that the defendant (Arlen) “was granted all the protection of his rights which the Constitution, the Federal Rules and fair dealing require, and he was duly and properly convicted of an offense of which he was undeniably guilty.”
Here the defendant presented an effective defense in a very simple case. The only issue was whether the jury believed the complaining witness or the story about his willingness to call off the prosecution if his stolen money were returned. The defendant’s defense was based upon the theory as disclosed in the letter written by the complainant. The substance of the letter was received in evidence. To say that a “trained lawyer” was needed to keep this material from the record is to say that a lawyer would and should have kept his defense from being presented. Had such an occurrence taken place, the case would be before us on an incompetence of counsel theory. And despite the majority’s statement that “the record reveals his defense to be deficient in many respects”, the deficiencies do not withstand analysis, “He made no opening statement.” (Many skilled defense counsel do not as a matter of good strategy.) “He made no objection to any of the prosecution’s direct examination.”. (The majority would be hard put even after reflection to couch a proper objection to a single question.) “[T]he difficulty he encountered in formulating acceptable questions.” (The eleven pages of cross-examination disclose no such difficulty; rather they evince an accurate awareness of exactly what he wanted to ask). “[Pjathetically outmatched by his adversary, an experienced prosecutor.” (There is nothing in the record as to the prosecutor’s experience; furthermore, the simplest type of question prevailed, “What did he do? What did he say?”)
I would also dissent from the majority’s characterization of court-appointed counsel and that even a “slim pocketbook” will secure “better representation” than such counsel would afford. Skilled criminal defense lawyers in this circuit and in the State Courts respond willingly to court requests. This is scarcely an age, or metropolitan New York a place, in which to view with pathos “the plight of the wage earner who cannot afford to hire his champion” in contrast to the “well-to-do” who “protect their interest by expending substantial sums to retain eminent counsel.” If this be true, we might as well scrap any effort conscientiously to apply the Criminal Justice Act.
The Judge below in my opinion mistakenly interpreted Gideon, supra, and particularly Mr. Lewis’ best-seller “Gideon’s Trumpet.” A trumpet is a strident instrument heard above all other instruments in'the orchestra. It is very effective when well played but can also produce very sour notes. It must also be remembered that the same instrument in the hands of Joshua wrought great destruction. If the trumpet continues to blare as the majority would play it, in my opinion the walls of “law and order” in the courtroom will indeed come “tumbling down.”
Unless the law for the trial judge is clarified, the pattern for the Davises of the future is clear. “I want a lawyer. I won’t accept assigned or Legal Aid counsel. I can’t afford to pay for the kind of counsel I desire. If at any time I don’t have ‘complete confidence’ in my lawyer, the trial must cease until I get another lawyer and remember, Mr. Judge, if I have to proceed with a lawyer, I can *629always claim that I have a constitutional right to represent myself.” And to think that so many distinguished jurists in committees and otherwise are spending so much time and effort in talking about, and writing concerning, criminal justice. Their words and theories will be so quickly nullified in the actual courtroom scene where the defendant is advised of his rights and makes his election.
No expression is more misleading than the much used and over-used phrase “with his eyes open.” Undoubtedly the expression is intended to convey the idea that the person whose eyes are thus open fully understands all the consequences of his election to proceed with or without counsel. In theory, the trial judge is assigned the responsibility of performing a task upon which trained psychologists would differ. An initial step would have to be a determination of the I. Q. because obviously the understanding level would vary widely between an I. Q. of 70 and an I. Q. of 125. The judge would then have to invade the defendant’s Fifth Amendment privileges because unless he knew the facts of the alleged crime, he would not know whether it was a “very simple” case or one involving so many legal technicalities that only the most skilled counsel was called for. But even were these examinations conducted and the trial judge exercised that “discretion” granted to him by appellate courts in some cases and denied in others by the overriding of that discretion, the defendant would still be free to assert in the habeas corpus proceedings of the future that his eyes may have been wide open but his mind was befogged.
I would, therefore, hold that Judge Leibowitz did everything conceivably possible to afford the petitioner the protection to which he was entitled; that petitioner, knowing the facts, conducted his defense as well as, if not better, than counsel assigned, appointed or paid; and that the federal courts should not dedicate themselves to exercising supervisory powers over the courts of the State of New York, which throughout the years from trial courts through Appellate Divisions and the Court of Appeals have shown by their decisions that they should be entitled to the greatest of respect.
Lastly, the judge below felt that the clarion sound of Gideon’s trumpet “would be drastically muted if this conviction and severe sentence are allowed to stand.” I, in turn, believe that the orderly enforcement of our laws in the courtroom will be substantially impaired if every contretemps between judge and counsel which a defendant thinks may be adverse to him entitles the defendant to discharge his counsel and thereby obtain a new trial. One might well ask: should there be any limitation on the number of wrecked trials or can such postponements of finality be endless ? As to the “severe sentence,” although appellate courts (as yet) in theory do not review sentences, the record reveals than from 1943 to 1962 the defendant had a record of twelve adult arrests and three previous juvenile encounters with the law. Starting in 1943 (robbery with knife); 1945 (stolen automobile); 1945 (assault and robbery); 1947 (stolen automobile); 1949 (possession of marijuana); 1951 (petit larceny); 1953 (petit larceny); 1954 (petit larceny); 1955 (possession of heroin); 1955 (theft of mail); 1957 (possession of cocaine) ; 1959 (possession of narcotic drugs); 1960 (grand larceny —reduced to attempted petit larceny); 1960 (possession of heroin and hypodermic needle); 1961 (possession of heroin). In view of this record, Judge Leibowitz was unwilling to release the defendant upon society after a short sentence. It is to be hoped that for the sake of society, Judge Leibowitz’ predictions do not come true. In any event, I wish to take no cooperating part in this so obvious scheme to frustrate the law.
Although I recognize that uniformity of opinion between the various panels of this court is impossible of achievement, I do believe that the opinion of the majority here is in conflict with the law in this circuit as declared most recently (February 1967) in United States v. Llanes, 374 F.2d 712, where a panel *630(Lumbard, Ch.J., Friendly and Hays, C.J.J.) said (717):
“We and other courts of appeals have repeatedly made clear that the right to counsel ‘cannot be * * * manipulated so as to abstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ United States v. Bentvena, 319 F.2d 916, 936 (2 Cir.), cert. denied, Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); United States v. Abbamonte, 348 F.2d 700 (2 Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 557, 15 L.Ed.2d 472 (1966); Cleveland v. United States, 116 U.S. App.D.C. 188, 322 F.2d 401 (D.C.Cir.), cert. denied, 375 U.S. 884, 84 S.Ct. 157, 11 L.Ed.2d 114 (1963); United States v. Burkeen, 355 F.2d 241 (6 Cir., 1966), cert. denied, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966). Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.”
I would reverse the granting of the writ.