(specially concurring):
I agree with the majority that Fitzgerald’s petition for habeas corpus relief should be granted. Because the law in this circuit is far from clear on the constitutional right to challenge a conviction on the grounds of incompetence of retained counsel and because I find sufficient state action in this case without reaching that point, I would decline the temptation to rest this decision on such broad grounds.
I am satisfied here that the conduct of Fitzgerald’s retained counsel was such that • it was, or should have been patently obvious to the prosecutors and trial court that he was being denied effective assistance of counsel. In fact, the testimony of the prosecuting district attorney is ample evidence that he knew Fitzgerald was not being given proper representation. Both the judge and the prosecutor have a duty to ensure that a defendant is afforded a fair trial. Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). When it becomes apparent to the trial judge or the prosecutor that the defendant’s attorney is so ineffective and incompetent that the proceedings have become a mockery or farce, these state court officials are obligated to take steps to protect the defendant’s constitutional rights. Failure to execute this duty may be charged to *424the state and may amount to a violation of due process. See Williams v. Beto, 5 Cir. 1965, 354 F.2d 698; Davis v. Bomar, 6 Cir. 1965, 344 F.2d 84, cert. den., 382 U.S. 883, 86 S.Ct. 177, 15 L.Ed.2d 124 (1965); United States ex rel. Darcy v. Handy, 3 Cir. 1953, 203 F.2d 407 (Maris, J.).
Therefore, I feel it unnecessary in this case to reach the broad question which the majority finds controlling.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before JOHN R. BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
BY THE COURT:A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.