with whom Judges Merrill, Browning, Ely and Hufstedler concur (dissenting):
While I agree that it is unwise unnecessarily to give constitutional status to rules of procedure which have commended themelves to one or more federal courts, I believe the judge’s comment in this case was at least as much of a threat to the fairness of the trial as were the judicial errors and omissions which were found to be constitutionally fatal in such cases as Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968); and Naughten v. *1143Cupp, 476 F.2d 845 (9th Cir. 1972), cert. granted, 411 U.S. 947, 93 S.Ct. 1926, 36 L.Ed.2d 408 (1973). Further, by not overruling Gonsior v. Craven, 449 F.2d 20 (9th Cir. 1971) while en banc, we are leaving undone a piece of work that will have to be done later.
Accordingly, I dissent.