(concurring in part and dissenting in part):
I think that a mistrial should have been declared for appellant Hines after prejudicial comments were made by the counsel for his co-defendant; and that the notes taken by police officers immediately after the robbery were “statements” within the meaning of the Jencks Act, 18 U.S.C. § 3500(e) (2). I therefore dissent from Parts D and E2 of the majority’s opinion.
I.
Appellant Hines claims that he suffered prejudice as a result of being tried jointly with Ware in light of Ware’s counsel’s closing comment to the jury to the effect that an inference of innocence should be drawn from Ware’s willingness to testify. Hines did not testify and informed the trial judge of this potential problem prior to trial in his motion for severance. The trial court denied this motion and instructed both counsel not to comment on Mr. Hines’ failure to testify.1
While this ruling was entirely within the trial court’s discretion, I cannot agree that the prohibition should have been understood to be confined to comments on an inference of guilt which could be drawn from Hines’ silence. In my opinion, the comments made by Ware’s counsel were not “innocuous”2 and served to point out not that Hines had a right to remain silent but that the innocent would not exercise that right.
I agree that joinder may serve the interests of judicial administration and economy, but such factors should never excuse violations of a defendant’s constitutional rights. The comment made by Ware’s counsel trespassed on Hines’ Fifth Amendment rights and I cannot in conscience accept the majority’s conclusion that this case can be distinguished from De Luna v. United States, 308 F.2d 140 (5th Cir. 1962) because the trespass appears to be less “serious.” Judge Wisdom’s analysis in that case is not limited to comments which refer to the guilt of the silent rather than the innocence of the loquacious.3 If a co-defendant in a criminal trial chooses to remain silent, all commentary which in*1336vites an inference of guilt must be avoided.4
I also cannot share the majority’s conviction that an immediate cautionary instruction on the part of the judge would remedy the error. Rather, the impact of such an instruction would be to remind the jury that Hines did not testify, which in the wake of the improper comment would again invite the inference that Hines had something to hide. See De Luna v. United States, supra, 308 F. 2d at 154-155. As soon as the improper comment was made, and counsel for Hines objected to it,5 the trial judge should have declared a mistrial and granted Hines a separate trial.
Accordingly, Hines is now entitled to a new trial.
II.
Accepting the majority’s description of the notes taken by various police officers immediately after the robbery in question, I cannot agree with the majority’s narrow construction of what constitutes “verbatim statements” within the meaning of the Jencks Act. It is not disputed that the witnesses gave brief descriptions of the three robbers which enabled the police to start searching for them, and I am willing to concede that these descriptions were, like the notes, rough, sketchy and general in nature.
However, appellants have steadfastly maintained throughout their trial and this appeal that the handwritten notes would contain, substantially verbatim, the precise words of description which were used by and could be ascribed to, individual witnesses — information which does not appear in the formal police reports. Police testimony about the taking of these handwritten notes does not refute this claim. In fact, it would seem only reasonable that specific words of description would be written down in the course of even the roughest note-taking.
Because a few words rather than complete sentences or statements are involved, there is no reason to doubt the good faith of appellants’ claim. Identification testimony constituted much of the Government’s case, and impeachment of the eyewitnesses with their own initial descriptions might be crucial. In this case, there appears to be some confusion about which of the robbers entered the realty office and which remained outside as lookout, as well as some conflict in the descriptions of the wearing apparel of each.
In cases of this kind I would treat rough notes which are likely to contain the descriptions first offered by eyewitnesses as “substantially verbatim statements” within the meaning of the Jencks Act. United States v. Augenbliek, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) is not to the contrary since that case involved rough and abridged notes of a lengthy interview in which whole sentences and statements were at issue.
*1337Even if these notes are within the Jencks Act, the Government asserts, no sanctions should be applied for the Government’s failure to produce them since they were either lost or destroyed. Under this court’s recent decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971), in the future the police department will be required, to make “earnest efforts” to preserve materials such as these notes and negligent loss will not be excused. In this case, as in Bryant, an inquiry into the possible bad faith of the police officers who took the notes is warranted. It appears on the record only that some notes were “lost” or “destroyed” while some appear to have been kept. These are insufficient explanations under the standards announced in Bryant.
I would therefore remand both cases to the District Court for inquiry into the applicable regulations of the police department concerning the preservation of notes; and into whether the police officers acted negligently or in bad faith; and to determine whether Jencks Act sanctions should be applied.
III.
I am very troubled by the question of whether there was probable cause to arrest the appellant Ware; and whether it was more than “merely the minimum of probable cause”, as required by our en banc decision in Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385, 392 (1970) to permit entry into Mrs. Hines’ home without a warrant to arrest Mr. Ware. A crucial factor in finding probable cause was the description given to the police of one of the robbers as wearing a dark raincoat. There is, however, some confusion in the record about this description. The handwritten police notes, which I consider subject to the Jencks Act, could clarify this confusion. Without these notes I refrain from any discussion of probable cause.
. Hines thus avoided the procedural dilemma posed in both Rhone v. United States, 125 U.S.App.D.C. 47, 365 F.2d 980 (1966) and Kolod v. United States, 371 F.2d 983 (10th Cir.), cert. denied, 389 U.S. 834, 88 S.Ct. 40, 19 L.Ed.2d 95 (1967).
. See United States v. Barney, 371 F.2d 166 (7th Cir. 1966), cert. denied, 387 U.S. 945, 87 S.Ct. 2080, 18 L.Ed.2d 1333 (1967).
. “Even if it were true that reasonable men cannot avoid drawing ‘natural inferences from an accused’s silence’, that is quite a different thing from having the silence emphasized by comment. The imputation of guilt from silence, if it does nothing else, may confuse the jury as to the presumption of innocence in favor of the accused.” De Luna v. United States, supra, 308 F.2d at 152.
. United States v. Kalin, 381 F.2d 824 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967), supports this conclusion. In that case, the Seventh Circuit upheld the District Court’s denial of severance to several co-defendants who claimed they were prejudiced by their inability to comment upon the failure of a single co-defendant to take the stand. The grounds of decision in Rhone v. United States, supra, 125 U.S.App.D.C. 47, 365 F.2d 980 involve entirely different issues. Contrary to the majority’s reading of that case I do not find in it the strong suggestion that De Luna is applicable only when co-defendants present mutually exclusive defenses.
. After both counsel had made their closing statements, but before the trial judge instructed the jury, counsel for Hines made his objection. 'While he did not formally move for a mistrial, he stated “if I did, I don’t think you’d grant one, but I do think it was a prejudicial comment.” The trial judge was therefore aware of the prejudicial error.