(dissenting in part and concurring in part).
The opinions prepared by my brothers of the panel are persuasively put and each contains a painstakingly careful analysis of the pertinent issues. Nevertheless, and regretfully, I am unable to concur in toto with either.
Upon the basis of the factual situation presented by the record, I find no violation of Raymond’s constitutional rights in the conduct of the pretrial identification procedure. Hence, I concur in the opinion of Senior Judge Hastings that the petition for a writ of habeas corpus was properly denied insofar as the identification procedure is concerned.
However, although the question may well be a close one, I must concur with Chief Judge Swygert that the State did not discharge its duty to disclose evidence to the defendant.
I reach this conclusion somewhat reluctantly in view of the clear exposition in Judge Hastings’ opinion of the facts showing Raymond’s guilt of a crime which cannot be typified other than as heinous. My reluctance does not flow from any premise that where guilt is reasonably clear we should overlook or minimize constitutional violations having a substantial likelihood of contrib*74uting to the conviction. However, every judge cannot but be painfully aware that substantial segments of the citizenry are critical of judicial decisions the effect of which might be to release an apparently guilty criminal before he has served his debt to society because of the inherent difficulties attendant upon a retrial many years after the incident in question. None of us willingly want to participate in a decision which might cause the public to have less than high regard for our system of judicial administration.
Yet this is a risk which must be assumed if the great immunity of every person from deprivation of life, liberty, or property without due process of law is to be something more than glowing phrases to be mouthed hollowly from flag bedecked platforms.
In that context, I turn to the issue before us. There seems to be no disagreement as to the facts and very little, if any, disagreement as to the basic law.
As to the facts, Raymond was aware that the laboratory test had been made and the negative results of it. This was not based upon police testimony that he was told but by his own admission (which I regard as refreshingly candid considering its cruciality) that he was told by the commander at the police station, “The results of the test on your clothing came back and proved negative, but this don’t [sic] clear you.”
It is further undisputed that Raymond’s counsel was not aware of the lab test or its results until after the trial and conviction.
No reason appears in the record for the defendant’s failure to inform his attorney about the test although it is difficult to conceive why he would not have done so since it appears to have been about the only thing “going” for him at the time.
The petition states that Raymond thought the State would, as a part of its duty to protect all concerned, the accused as well as the accuser, introduce the results of the test in evidence. While a criminal trial should, for the purpose of establishing guilt or innocence, bring forth all of the pertinent facts and not be a game of skill, I know of no authority which would require the State itself to put the test results into evidence.
Perhaps more crucial as to the reason for the failure of communication is the allegation of the petition that the matter had not been mentioned in the two interviews between attorney and client in the eight months of incarceration.
As to the law, the panel is in agreement that the suppression by the prosecution of evidence favorable to an accused upon request by the accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Of course, there was no request but counsel apparently was not clairvoyant and Raymond individually had not reached the stage of some present-day defendants of trying his own case. In any event, post-Brady authority indicates the request is not necessarily crucial and with this I would agree. Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964).
Disagreement in the panel, however, is centered on the question of whether it is sufficient that the accused alone be aware of the evidence. I join Chief Judge Swygert in holding that it is not.
From the cornerstone of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), we now have firmly fixed the concept of the right of the State-accused defendant to counsel under the 14th Amendment.
“The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799]); on appeal (Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811]); *75and at the other ‘critical’ stages of the criminal proceedings (Hamilton v. Alabama, supra [368 U.S. 52, 82 S. Ct. 157, 7 L.Ed.2d 114] (1961)) have all been retroactive, since the ‘denial of the right must almost invariably deny a fair trial.’ See Stovall v. Den-no, 388 U.S. 293, 297 [87 S.Ct. 1967, 18 L.Ed.2d 1199].” Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S.Ct. 35, 36, 21 L.Ed.2d 5 (1968). (Footnote omitted.)
Returning to Powell, supra, I note the basic tenet that the duty of assigning counsel “is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” 287 U.S. at 71, 53 S.Ct. at 65.
It seems patent to me that the suppression of material evidence from the counsel is to preclude the giving of effective aid, the very purpose of having counsel.
Returning to the evidence, while the Supreme Court of Illinois states in People v. Raymond, 42 Ill.2d 564, 568 (1969), the evidence was not necessarily exculpatory, it clearly in my opinion was exculpatory.
It should not take particularly skilled counsel, given the prosecuting witness’s description of the time, manner and extent of the rape, to argue most effectively that if he had been the culprit the indicia of the ill deed most certainly would have been on his clothing. Because the State did not make the information available, the jury was unaware of what, with an alibi, might well have been crucial evidence. I cannot conceive that the absence of the evidence since it stemmed from suppression permitted a fair trial.
The result of the jury’s verdict might have been the same with this evidence before it but for us to say so could only be on a basis of speculation. Suffice it to say, I cannot assert in the setting of this particular case, notwithstanding the incriminating evidence, the constitutional error was so unimportant or insignificant that it could be deemed harmless. In other words, I am unable to declare belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
I am aware that the decision on this point seems to amount to a per se rule but it appears to me to be a healthy rule that the elimination of suppression of material evidence should take the form of communication to the attorney for it is he who will make the determination of what to present and what not to present to the trier of fact in the guilt determination process. It is he who has the expertise for evaluation of what may be helpful or hurtful to his client’s cause.
The establishment of a per se rule will eliminate the temptation to law enforcement officials to communicate only with the accused with the thought that he may not tell his attorney because of insufficient contact with him, lack of appreciation of the true significance of the communicated data or just pure inadvertence. In such event, the task of conviction is, of course, simplified.
It is not necessary, in my opinion, to determine whether every instance of suppression will constitute harmful error. We are concerned only with the factual situation of this case where the suppression could have been harmful. The great writ, in my opinion, should have been granted on this issue with appropriate opportunity afforded to the State for the retrial of the defendant.