(dissenting):
I agree with the majority that the standard to be applied in reviewing the trial judge’s erroneous instruction is the one set out in Chapman v. California.1 Since proof beyond a reasonable doubt is essential to the constitutional right to due process,2 the erroneous instruction of the trial judge concerning the burden of proof amounted to constitutional error and the Chapman standard must apply. But because I cannot conclude beyond a reasonable doubt that the jury would have reached the same verdict if instructed properly as to intoxication, I would reverse and remand for new trial.
I
Once the issue of intoxication is raised, the burden rests on the government to show beyond a reasonable doubt that defendant’s drinking did not destroy his capacity to form the requisite intent for the crime.3 After he instructed the jury on the requirement of specific intent, the judge noted that the issue of intoxication had been raised and that intoxication “may be introduced into evidence to determine state of mind. . ” He then explained:
[Ijntoxieation pertains to the intent, an essential element of the offense with which the defendant is charged. As you have already been told, specific intent is one of the essential ele*951merits. Even if the defendant in this particular case may have been intoxicated to some degree, if you, as jurors, determine from the evidence that the Government has proved beyond a reasonable doubt that the defendant was capable of knowing, that is, knowing what he was doing so far as the specific intent is concerned, to commit the offense in question, then you may find that the Government may have proved beyond a reasonable doubt all the essential elements of the offense.
Thus far, the jury knew only that intoxication pertained to intent, an essential element of the crime on which the prosecution had the ultimate burden of proof. The trial judge then went on to discuss what constitutes “intoxication”:
[MJere drinking is not intoxication. You must find beyond a reasonable doubt that the defendant at the time and place in question if he did perform the act was in such mental state that he was not capable of forming the specific intent in question.
The instruction is clearly erroneous and a lay jury could easily have concluded that intoxication is a defense which is to be considered only when the defendant proves beyond a reasonable doubt that his drinking was so severe as to destroy his capacity to form the intent. In other words, by defining “intoxication” as a state of being in which the defendant is unable to form intent, and by placing a heavy burden on the defendant to show that his drinking amounted to such “intoxication,” the court removed the state’s burden of showing beyond a reasonable doubt that the defendant had the capacity to form the intent.4
Of course, as the majority states, jury instructions must be considered as a whole rather than in isolated passages. The majority believes that any harm resulting from the erroneous instruction was purged by other language which emphasized that the burden was on the government to prove beyond a reasonable doubt that the defendant was capable of forming the specific intent charged. But I find that the court’s instructions were, as a whole, far from clear on the matter of intent.5 And even if the jury were crystal clear as to who had the burden on this issue, the jury could have concluded that just drinking was not relevant to intent until the defendant had shown that the drinking amounted to “intoxication” — that it diminished his capacity.6
Appellant certainly had a colorable intoxication defense. He testified that shortly before the scuffle he had drunk a quart of vodka; a witness, who later claimed the appellant had wanted her to lie but that she had refused, nonetheless testified that the defendant was drunk; two other defense witnesses testified that he was drunk; and even his victims *952testified that he acted strangely, as if he were drunk.7
In these circumstances I cannot conclude beyond a reasonable doubt that the erroneous instruction of the trial judge was harmless error.
II
As the majority notes, the issues which appellant now raises were not preserved at trial by his court-appointed attorney. The record indicates that counsel not only failed to object to the judge’s clearly erroneous jury instructions, but also failed to object to the Government’s introduction of certain inculpating statements made by the appellant to a police officer, after being taken into custody. The improper admission of this damaging confession would surely be an error affecting substantial rights.8 And I am persuaded that the evidence on the record does not sustain the heavy burden on the government to show a valid waiver of the appellant’s privilege against self-incrimination.9
As this Court held in United States v. Frazier,10 the burden on the government to show a valid waiver requires it to prove that the accused received Miranda warnings before making his inculpatory statement and that he “was capable of understanding” the warnings when given.
It is not clear from this record whether the Miranda warnings were given before the admissions were made. The incriminating statements and the circumstances in which they were secured are described in the testimony of Officer Lewis:
A. At the hospital I placed Mr. Martin [the defendant] under arrest and advised him of his rights.
Q. Did he regain consciousness in your presence?
A. Yes.
Q. And he did appear cognizant of his surroundings?
A. Yes.
Q. Now, when you placed him under arrest and advised him of his rights what, if anything, did he state at that time?
A. He began looking through his trouser pockets. He asked where his knife was. He wanted to know why he was here. Why he was in this condition.
Q. Did he say anything else ?
A. Yes, he said, “Why am I here and why am I in this condition. I am good with a knife. The guy should be dead.”
On cross examination the officer elaborated on this story:
Q. . . . Now, when you placed Mr. Martin under arrest what did you advise him that he was under arrest for?
A. I advised him he was under arrest for assault with a dangerous weapon .
*953Q. Was there any mention made that someone had been cut and just what had happened and why he was charged with assault?
A. Yes sir.
Q. He was advised of this ?
A. Yes sir.
Clearly the evidence is ambiguous as to when the warnings were given. And the appellant’s statement went directly to the all important question of his intent.
Moreover, there are strong indications that the appellant lacked capacity to understand the warnings even if they were timely. There was testimony that he had consumed a great deal of liquor earlier in the evening. He was unconscious for some time before and perhaps right up until his exchange with Officer Lewis.11 Officer Lewis testified that there were lacerations on the appellant’s head,.-which was heavily bandaged, and that his face was swollen. This suggests that appellant may have suffered a Serious head injury. It is very unclear what state of consciousness the appellant was in when the warnings were read to him. All of this presents a substantial question as to whether the appellant was capable of a knowing and voluntary waiver of his rights under Miranda;12 On the basis of the evidence presented, the trial juge hardly had sufficient information on which to base a conclusion that the appellant’s statements were admissible.
Since the appellant chose to testify, under the Supreme Court’s ruling in Harris v. New York,13 his inculpatory statements might have been introduced for impeachment purposes even though Miranda criteria were not met. However, this does not appear to be the basis on which the government introduced those statements. First, the government contended at trial that it had met the burden of Miranda;14 the government did not argue that the statements were introduced to impeach the appellant. Second, the statements were introduced before the appellant testified.
If the statements were not introduced for impeachment purposes, the government failed to meet its burden under Miranda. If the admissions could fall within the Harris exception, the circumstances dictate that a limiting instruction was required. Defense counsel cannot be held to have waived a limiting instruction here, particularly since it appears that neither he, the judge, nor the prosecutor believed that the evidence was being introduced only for impeachment purposes.
If this were the only issue presented by this case, I would remand for a hearing to determine whether there was a *954custodial interrogation and, if so, whether there was a valid waiver.15
Ill
Even if I were not pursuaded that this case should be reversed and remanded for a new trial, I would remand for resentencing. The Supreme Court has recognized that a defendant’s 6th Amendment right to counsel extends to sentencing,16 and this court has long since held that the right to counsel at sentencing, as at other stages, is the right to the effective assistance of counsel17 That right includes, at a minimum,
. the aid of counsel in marshaling of facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence. . . .18
The approved draft of the American Bar Association’s Project on Standards for Criminal Justice includes minimum standards for the role of defense counsel at sentencing.19 These standards recognize the following duties: first, counsel should ascertain and explain to his client and the court the alternative dispositions available, including the consequences of each; second, if the presentence report is available to him counsel should seek to verify and supplement the information and evaluate the conclusions contained therein; third, if a report is not available, he should develop his own report for presentation to the court in which he should urge any ground that supports a proper disposition favorable to the accused; fourth, he should make special efforts to investigate dispositions particularly appropriate to his client so that he can suggest a program of rehabilitation based on his knowledge of the defendant and available community resources ;20 fifth, he should insure that all the information relevant to sentencing appears in the record.
*955The record before us suggests that counsel in this case failed to do any of these things. He had only the following to offer at sentencing:
I have nothing to add to the information I am certain is in the probation report, if your honor please. And I believe Mr. Martin doesn’t desire to make any statements.
Counsel’s remarks make it doubtful that he even saw the presentence report,21 or “[took] steps to see that [the] sentence was not predicated on misinformation.”22 Effective representation requires the services of a conscientious and diligent advocate.23 Where counsel offers but a pro forma appearance at sentencing, as on the record before us, clearly the accused has been denied the effective assistance of counsel24 at that crucial “step in the proceedings against him.” 25
The problem of ineffective assistance —particularly in cases involving indigent defendants — is not new to this court,26 though it is an issue we have come to face more often of late.27 Nor *956is ineffectiveness always a result of a lawyer’s incompetence or lack of diligence. Particularly in regard to sentencing, it may be more of an institutional problem, reflecting a common misunderstanding of counsel’s role28 and a prevalent but far too narrow conception of an appointed attorney’s obligations to his client.29 But that is all the more reason why we can no longer delay confronting the problem. In any case, our real concern is not the culpability of counsel or the reason for his failure. It is the denial of the defendant’s 6th Amendment rights.
A remand for resentencing on the grounds of ineffectiveness represents no infringement on the trial judge’s discretion in sentencing. On the contrary, its purpose is to insure that the sentencing judge has adequate information on which to base that exercise of discretion. Because the judge will often possess a great deal of doubt about the nature and character of the defendant and the appropriate sentence to be imposed,
[e]ven the most self-assured judge may well want to bring to his aid every consideration that counsel for the accused can appropriately urge.30
Since the appellant was denied his constitutionally guaranteed right to the effective assistance of counsel at sentencing, I would vacate his sentence and remand the case for resentencing.
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (where an error affecting constitutional rights is to be held harmless, it must be found to be harmless beyond a reasonable doubt).
. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970):
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
. See, e. g. Womack v. United States, 119 U.S.App.D.C. 40, 336 F.2d 959 (1964).
. Compare Suggs v. United States, 132 U.S.App.D.C. 337, 407 F.2d 1272 (1969) (Chief Judge Bazelon dissenting).
. The instruction immediately following the erroneous charge, which the majority quotes at length, is also confusing and its conditional language could easily have reenforced the jury’s misconception:
. [I]f you find that the Government has failed to prove that the defendant in this case was capable of forming the specific intent then you may find the defendant not guilty. (emphasis added)
. The judge’s subsequent clarification of his instructions on the difference in the intent elements for assault with intent to kill and assault with a dangerous weapon also could be taken as characterizing intoxication as a positive defense (to be proven by the defendant) :
[T]he court has already advised you that counts 3 and 6, and counsel has argued to you in his final argument, that intoxication is not a defense because assault with a dangerous weapon is a general intent as separated or taken out from specific intent. And therefore, you need not consider the defense of intoxication so far as counts 3 and 6 are concerned. (Emphasis added.)
. The majority points out that both prosecution and defense witnesses testified that the appellant did not show many of the usual “physical manifestations of intoxication.” However, beyond the testimony referred to in the text, there was testimony by one witness describing appellant’s speech as sounding like “he had a load of cotton in his mouth.” In any case, for our purposes, intoxication is a question of mental not physical agility.
. In applying rule 52(b) to cases which (like the one before us) involve the failure of a court appointed attorney to object to an error of the court, we might keep in mind an observation made by the Supreme Court of Illinois many years ago:
[T]he court owed it to . . . [the defendant] to see that no advantage came to the state by reason of the [inadequacy] of the counsel selected by the court for him.
People v. Blevins, 251 Ill. 381, 393, 96 N.E. 214, 219 (1911).
. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. 155 U.S.App.D.C. -, 476 F.2d 891 at p. 892 (1973) (en banc). See also Frazier v. United States, 136 U.S.App.D.C. 180, 187, n.31, 419 F.2d 1161, 1168 n.31 (1969).
. It is quite clear that the confession was made while the appellant was in custody. Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158 (1967), urged by the prosecution as precedent for admission, is therefore inapposite. Although Officer Lewis’ testimony is suggestive of an interchange initiated by the police, hence a custodial interrogation, that question is far less dear and should be determined on remand.
. Officer Lewis testified to a second statement made by the appellant at the police station. That testimony appears below: . He stated to me [at the station] that he was good with a knife. He-said “I should have killed the guy.” He couldn’t understand why he was in the condition he was.
Again, it is unclear whether the appellant had yet been given Miranda warnings that he could understand, what his mental condition was, or what gave rise to this remark — particularly whether it was made in the course of a discussion of his earlier “confession.”
. 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
. The prosecution relied on a case which did not involve capacity to understand but rather whether refusal to sign a waiver was sufficiently probative of actual misunderstanding to render the waiver invalid. Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969), cert. denied 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676 (1970); see United States v. Frazier, 155 U.S.App.D.C. -, at -, 476 F.2d 891, at 897 n. 6 (1973) (en banc).
. When faced with a challenge to a confession raised for the first time on appeal, this court remanded for a hearing on the admissibility of the confession rather than for a new trial in Frazier v. United States, 136 U.S.App.D.C. 180, 188, 419 F.2d 1161, 1169 (1969). For the same reasons, I would remand this ease for a hearing on the confession issue, if it were not for the jury instruction discussed at part I of this opinion.
. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); see Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957).
. Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955):
The right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution.
See McConnell v. Rhay, 393 U.S. 2, 4, 89 S.Ct. 32, 34, 21 D.Ed.2d 2 (1968):
The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication.
. Mempa v. Rhay, supra, 389 U.S. at 135, 88 S.Ct. at 257 (1967); see Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
. Standards Relating to the Defense Function, Approved Draft, 1971, American Bar Association Project on Standards for Criminal Justice (1971) § 8.1. The standards set out here provide a good basis for assessing whether an attorney has rendered effective counsel to his client. Accord, Standards Relating to Sentencing Alternatives and Procedures, Approved Draft, 1971, American Bar Association Project on Standards for Criminal Justice (1971) § 5.1; see Dash, The Defense Lawyer’s Role at the Sentencing Stage of a Criminal Case, 54 F.R.D. 315, 316 (1968).
. The Offender Rehabilitation Division of the District of Columbia Public Defender Service has a professional staff which conducts investigations so that an appointed defense lawyer can go to court armed with a thorough and accurate presentence report and a positive rehabilitation plan. This program is commended by the ABA study, Standards Relating to Sentencing Alternatives and Procedures, supra note 19 at 251, which observes that the D.C. program “could well make the difference between an offender who languishes in jail and will wind up there again and an offender who successfully supports his family while at the same time receiving the help he needs.” See also Pye, The Administration of Criminal Justice, 66 Colum.L.Rev. 286 (1966).
. The prosecutor “urge[d] the court to impose a maximum sentence of life imprisonment,” because of appellant’s “prior felony convictions” and the lack of “mitigating circumstances.” Appellant was sentenced to a prison term of 10 years to life. He was eligible to receive as little as a 2 year sentence.
Defense counsel never pointed out what was clear even from the presentence report; that appellant’s “criminal record does not show any criminal conduct since 1960,” that none of his prior convictions were for crimes of violence, and “that he apparently has been able to maintain himself financially and has been living at one place of residence approximately seven years.”
But, it is necessary to point out that defense counsel cannot rely on the Probation Service presentence report. Such reliance represents a substantial abdication of defense counsel’s role. See text at note 19, supra,. Just how serious is the danger of unreliability in these reports appears from the following. The Federal Probation Service currently has 808 authorized staff positions nationwide. In order to meet the minimum standards for presentence and supervision functions set by the President’s 1967 Crime Commission report for fiscal (FY) 1974, the agency would have to nearly triple its staff by adding 1438 new officers. The Judicial Conference has recommended that Congress authorize just 340 new positions. For the previous year (FY1973), Congress granted only one-half of the Conference’s recommendation. The implication of these figures canont be lost on diligent defense counsel.
. That this is a responsibility of counsel was recognized in Mempa v. Rhay, 389 U.S. at 133, 88 S.Ct. 254, quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1958).
. Tate v. United States, 123 U.S.App.D.C. 261, 269, 359 F.2d 245, 253 (1966). (Counsel must act not as a passive friend of the Court but as a diligent, conscientious advocate). The ABA suggests that counsel should “assume the same position of advocacy [at sentencing] that is his duty at the trial.” ABA Standards Relating to Sentencing Alternatives and Procedures, supra note 19 at 246.
. United States v. Hammonds, 138 U.S.App.D.C. 166, 173, 425 F.2d 597, 604 (1970) (A pro" forma defense does not meet the minimum requirements for effective assistance of counsel).
. “[The accused] requires the guiding hand of counsel at every step in the proceedings against him. ... If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed.2d 158 (1932) (in regard to the right to counsel at the guilt determining phase, but the right was later extended to the sentencing stage, see note 16, supra). Thus the Supreme Court recognized how essential the effective assistance of counsel is, particularly to indigent defendants like the one before us today.
. Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627 (1955), where we found that appellant was denied effective counsel at sentencing when there was no showing that substituted counsel was prepared, or had the opportunity to prepare, and at the hearing counsel made no effort to speak on behalf of his client. See, e. g., Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).
. United States v. Benn & Hunt, 155 U.S.App.D.C., 476 F.2d 1127 (1972) (Chief Judge Bazelon dissenting); United States v. Burks, 152 U.S.App.D.C. 284, 470 F.2d 432 (D.C.Cir. Oct. 19, 1972) (Chief *956Judge Bazelon concurring); United States v. Smallwood, 153 U.S.App.D.C. 387, 473 F.2d 98 (1972) (Chief Judge Bazelon concurring); Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971); United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970); Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
. As the commentary to the ABA Standards observes:
It is unfortunately too often the case that the defense attorney considers his job completed once he has assisted the defendant through the guilt phase of the proceedings and perhaps jockeyed for the most lenient sentencing judge. ABA Standards Relating to Sentencing Alternatives and Procedures, supra note 19 at 241.
. It is deserving of mention that according to a recent survey of federal offenders sentenced during 1970, those with appointed counsel received considerably longer sentences than those with retained attorneys. The average sentence weight for defendants with assigned counsel was 7.2 as compared to 5.7 for those with retained counsel. In regard to assault and homicide offenses, the category of the charges in the case before us, the average sentence weight for defendants with court appointed lawyers was 8.3 as compared to 6.8 for those with retained counsel. Table 9a in Administrative Office of the United States Courts, Federal Offenders in the United States District Courts — 1970 at 49 (1972).
. Carter v. Illinois, 329 U.S. 173, 178, 67 S.Ct. 216, 220, 91 L.Ed.2d 172 (1946); see Martin v. United States, 182 F.2d 225, 227 (5th Cir. 1950):
There is then a real need for counsel [at sentencing]. Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of defendant’s conduct; to correct any errors or mistakes in reports of the defendants’ past record ; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws. Any Judge with trial Court experience must acknowledge that such disclosures frequently result in mitigation, or even suspension, of penalty.