dissenting.
In the ongoing process of incorporating into the Fourteenth Amendment such particular provisions of the Bill of Rights as the right to the assistance of counsel and the guarantee of freedom from self-incrimination, with the technical definitive gloss that attends each of *469them, there is danger that the comprehensive independent reach and role of the Due Process Clause in criminal procedure be obscured. And in some eases, among them this one, that obscuration can result in judicial analysis that unduly restricts the protection afforded to accused persons by the Fourteenth Amendment.
On its face and in historic reading, the Due Process Clause of the Fourteenth Amendment requires that the procedure through which a state obtains a conviction of crime be essentially fair. Thus, long before the Supreme Court announced the incorporation of the Fifth Amendment prohibition of compulsory self-incrimination and the Sixth Amendment guarantee of the assistance of counsel as specific requirements of due process,1 coercive methods used in obtaining a confession and prejudicial failure to provide an accused with the assistance of counsel were recognized by the Supreme Court as important circumstances that should be considered in determining whether challenged procedure that had led to a criminal conviction was so unfair or indecent that it could not be squared with the constitutional concept of due process of law.2 This approach to and understanding of the Due Process Clause was not attended by any question of the retrospective application of the holdings of particular decisions. But it did recognize that a court may properly aggregate elements of unfairness and impropriety in the obtaining of a conviction, no one of which alone may be decisive, and conclude on that basis that the procedure by which a jury was persuaded to convict or, more narrowly, by which damaging admissions were obtained from the accused, was less than due process.3 To state the matter somewhat differently, the proper performance of the judicial function under the Due Process Clause often requires “an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express * * [our] notions of justice * * Ma-linski v. New York, 1945, 324 U.S. 401, 416-417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (Frankfurter, J., concurring).
More particularly, the majority opinion convincingly demonstrates that if, at any time since the 1964 decision of the Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, a police interrogation in the absence of counsel had elicited an incriminating statement from a prisoner in Dickerson’s position, the use of that statement as evidence would be precluded as violative of the Sixth Amendment. In the view of the Court the denial of the assistance of counsel at any critical stage of a criminal proceeding was so grossly unfair to the accused that it justified this constitutional prohibition. Only the technical operation of a judicial concept of nonretroactivity prevents the Massiah rule from applying here. But that technicality cannot make the denial of counsel at a critical stage of a criminal proceeding, which is unconstitutional to-day, wholly unobjectionable when it was experienced by Dickerson in 1958. Massiah did not make the procedure there condemned unfair. Rather, judi*470cial perception of unfairness made Mas-siah.
It follows that the technical non-retro-activity of the constitutional rule of Massiah should not prevent us from recognizing, consistent with the underlying justification of that decision, that there was a significant element of unfairness in police interrogation of Dickerson after he had been charged and committed, and after he had vainly requested the assistance of counsel. This element of unfairness should be considered, together with whatever other circumstances may be relevant, in reaching an ultimate decision whether the entire procedure that led to Dickerson’s statement was sufficiently unfair to constitute a denial of due process of law. It has already been pointed out that this approach is firmly rooted in the jurisprudence of the Supreme Court. Indeed, the Court has been very explicit in saying that, “in judging whether state prosecutions meet the requirements of due process, [it] has sought to achieve a proper accommodation by considering a defendant’s lack of counsel one pertinent element in determining from all of the circumstances whether a conviction was attended by fundamental unfairness.” Cicenia v. Lagay, 1958, 357 U.S. 504, 509, 78 S.Ct. 1297, 1300, 2 L.Ed.2d 1523.
Similar reasoning applies to the separate contention, also rejected by the majority, that Dickerson’s statement was “involuntary” so that its use amounted to compulsory self-incrimination in violation of the Fifth Amendment. Although on the entire record there was enough to justify the state courts’ finding that Dickerson was not subjected to physical abuse, I think we all agree that this record contains a substantial unre-futted showing that his interrogation was characterized by significánt pressure, short of brutality. Very damaging admissions were obtained by the police through a five hour interrogation of the accused after a preliminary hearing at which he had been charged with homicide and formally committed to prison to await grand jury action. Moreover, that interrogation had been facilitated by an ex parte “bring-up order” in which a judge authorized a temporary transfer of custody of the accused from the prison authorities to the police, thus permitting undisturbed interrogation in a place chosen by and under control of the police. All of this occurred while the accused was without counsel and after he had asked for and had been denied an opportunity to communicate with “my people or a lawyer.”
The actual interrogation pursuant to the “bring-up order” was attended by several objectionable procedures. Pressure upon the accused is apparent in the record. The interrogation continued for more than five hours. Five hours of questioning about the uncomplicated circumstances of the homicide, particularly after the accused already had made a rather full earlier statement, is in itself a significant indication that pressure was being applied. The interrogation was conducted by five detectives employing a “Mutt and Jeff” routine under which a period of antagonistic interrogation by one detective was followed by friendly cajoling on the part of another. Pressure also was exerted by administering a “lie-detector test” and then telling the prisoner, apparently without justification, that this procedure established as a fact that he was lying. Though we accept the finding of the state court that no brutality occurred, these more subtle methods of applying pressure employed by the police, which after five hours created “willingness” to talk, were in themselves objectionable. Moreover, the “statement” signed by the prisoner is obviously not in his own words. Rather, it is something prepared by the police as embodying the useful substance of what had been said. Perhaps, standing alone, these characteristics of the interrogation, different from physical abuse, were not such serious improprieties as to amount to a denial of due process. But they are serious official improprieties and significant elements of wrong in the total procedure *471that produced the incriminating statement.
• Finally, it is significant that the five hour uninterrupted interrogation of Dickerson in a place other than the prison, selected by the police and under their control, was made possible by an ex parte “bring-up order” signed by a judge at the request of the police. As a result of a preliminary hearing Dickerson had been duly committed to prison, there to be kept safely pending further action on the charge against him. If thereafter relatives, friends or counsel had wished to talk to him, they would have been required to do so at a designated place in the prison and subject to whatever may have been the prison rules and practices regulating visitation to prisoners. I am unable to believe that any court would have granted defense counsel an ex parte “bring-up order” to permit counsel to interview his client privately in counsel’s office for the better preparation for trial. Yet, a state judge authorized the police to remove Dickerson from prison to a place under exclusive police control and there, free of any possible interruption or interference, interrogate him for several hours. This court-sanctioned procedure served no purpose other than to facilitate such application of pressure upon the accused as might be necessary to induce him to make such a statement as the police desired to strengthen the case against him.
When this ease was before the Supreme Court of Pennsylvania on Dickerson’s appeal from a denial of state ha-beas corpus, that court affirmed the denial without opinion. Commonwealth v. Dickerson, 1968, 428 Pa. 564, 237 A.2d 229. However, Mr. Justice Roberts filed a dissenting opinion in which he discussed the nature and significance of the “bring-up order”. I quote a part of his opinion which to me is wholly persuasive that the questioned procedure was unfair: both of these adjectives are unquestionably applicable. Not only was this bring-up order issued ex parte, but it is also condemned by state statute. [The Act of February 18, 1785, 2 Sm. L. 275, § 12, 12 P.S. § 1887]. Judge Finletter, in ringing language with which I heartily concur, highlighted the evils inherent in this practice. See Commonwealth v. Brines, 50 C.C. R. 68, 29 Dist. 1091 (1920):
“Although in Dickerson’s direct appeal this Court insisted that there was ‘nothing sinister or secretive’ about the bring-up procedure, I believe that
T do not see that I have any power, by my mere order, to take the defendant against his will from the county prison, to which he has been lawfully committed to await trial, for any other purpose connected with his case except the trial.
‘By the terms of the commitment, he is to remain in the county prison to answer the charge of murder, not to answer the call of any and every person, official or other, who may wish to meet him or speak to him. If his presence elsewhere is needed to answer any lawful demand which he would be compelled to answer if at liberty, it may be secured by a proper writ of habeas corpus.
‘It seems to be forgotten that an accused is not a convict, and that it is only strong necessity that compels his detention before trial. It is a restraint of the liberty of his person which is unavoidable. It certainly should not be aggravated by the infliction of any unnecessary indignity.
‘An accused, but unconvicted, prisoner is not to be bundled about the county at the beck and call of every policeman or prosecutor who may wish to see him.’ ” 428 Pa. at 567-568, 237 A.2d at 231.
Thus, the entire questionable interrogation was made possible by unwarranted action on the part of a state judge. This is yet another distinct impropriety in the whole course of official conduct, the end product of which was a statement that was used against Dickerson at his trial.
*472My conclusion from all of this is that the totality of the circumstances that led to the incriminating statement — particularly, the ex parte bring-up order, the undisputed indicia of pressure during interrogation and the denial of the requested assistance of counsel throughout all of this procedure — discloses too much unfair and potentially prejudicial official conduct to consist with due process of law. Therefore, I would affirm the judgment granting habeas corpus.
FREEDMAN and ADAMS, Circuit Judges, join in this dissent.
. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, overruling Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, Mal-loy v. Hogan, 1964, 379 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, overruling Adamson v. California, 1947, 332 U.S. 46, 67 S. Ct. 1672, 91 L.Ed. 1903.
. E. g., Harris v. South Carolina, 1949, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690.
. The Supreme Court has stated and applied this principle repeatedly. E. g., Payne v. Arkansas, 1958, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Fikes v. Alabama, 1957, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. Its validity is in no way impaired by the fact that its invocation has been unnecessary in many recent cases because the Court has found a violation of a specific provision of the Bill of Rights.