with whom BROWN, Chief Judge, and RIVES, WISDOM and GOLDBERG, Circuit Judges, join, (concurring in part and dissenting in part).
I am glad to see even partial dissipation of the anomaly of different constitutional consequences from ineffectiveness of retained counsel and ineffectiveness of appointed counsel in criminal eases. Torn between this distasteful anachronism on one hand and the concept of state action on the other, and with two competing lines of authority in this circuit, the majority stake out a new but intermediate position. I would go the whole way and hold that the due process clause of the Fourteenth Amendment assures a criminal defendant effective representation of counsel whether the attorney is court appointed or retained.
1. Fourteenth Amendment due process, with and without incorporation
None will disagree with Judge Clark’s statements that fundamental unfairness in the state trial of a criminal defendant violates Fourteenth Amendment due process. In a case where the fundamental unfairness complained of is ineffectiveness of counsel, the ultimate contention is that because the defendant lacks the essential tools for defense his trial is unfair and thus lacking in the due process guaranteed by the Fourteenth Amendment. See Craig, The Right to Adequate Representation in the Criminal Process: Some Observations, 22 S.W.L.J. 260, 272 (1968), quoted by Judge Wisdom, writing for this court in West v. Louisiana, 478 F.2d 1026 at 1033 (5 Cir. 1973); Note, Effective Assistance of Counsel for the Indigent Defendant, 78 Harv.L.Rev. 1434, 1437 (1965).
Judge Clark, however, draws a distinction between cases which involve the due process clause “standing alone,” that is, without incorporation of Sixth Amendment right to counsel, and cases in which the Sixth Amendment right is incorporated into Fourteenth Amendment due process. He considers that cases of the latter type cover a greater range of counsel errors than does the fundamental fairness standard of the due process clause as solely embodied within the Fourteenth Amendment, but in these latter cases he is willing to find due process applicable to only the situation in which some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. This distinction coincides remarkably with the rationale of the Supreme Court in Betts v. Brady, 316 U.S. 455, 465, 62 S.Ct. 1252, 1257, 86 L.Ed. 1595, 1603 (1942):
Though, as we have noted, the [sixth] amendment lays down no rule for the conduct of the states, the question recurs whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment.
That distinction was met forthrightly and repudiated in Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799, 804 (1963):
We accept Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is ‘fundamental and essential to a fair trial’ is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights.
Thus in Gideon the Supreme Court established that the Sixth Amendment’s guarantee that “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense” is fundamental and essential to a fair trial. Chapman v. California, 386 U.S. 18, 23, note 8, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710 (1961), indicates that since Gideon the Sixth Amendment right to counsel is *1345one of those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error”. Cf. Cupp v. Naughten, 414 U.S. 141, 155, 94 S.Ct. 396, 404, 38 L.Ed.2d 368, 378 (1974), Brennan, J., dissenting, joined by JJ. Douglas and Marshall; 3 Wright, Federal Practice and Procedure, § 855.
There may be cases in which the defendant and counsel fraudulently collude, or in which the defendant purposely retains incompetent or inefficient counsel. With the exception of such cases, which must be rare, it would seem clear that by retaining his own counsel, the defendant does not lose his constitutional right to have the effective assistance of counsel for his defense. Indeed, in most cases the defendant is attempting to implement that right. One who, perhaps at some sacrifice, employs his own attorney should not be penalized by having a lower standard applied to measure his constitutional right to the assistance of counsel or by the requirement of some state involvement in addition to that which results from enforcement of the judgment.
2. State action
Where counsel is retained, the necessity for state action is satisfied because the state adjudicatory machinery is inextricably intertwined with the conduct of an accused person’s retained attorney. Thus I view the case as comparable with Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), in which the Supreme Court held that state action was supplied by the involvement of the state adjudicatory machinery in enforcement of ostensibly private racially restrictive covenants. See also Hall v. Garson, 430 F.2d 430 (CA5, 1970) (state action found where private individual performed function traditionally performed by sheriff upon order of the court).
The adjudication of state criminal cases is a vital function of the state in the performance of which it structures, operates and regulates an intricate and powerful arm of government. It provides for judges, sets their pay and qualifications and designates their mode of selection, and, if the method is electoral, supervises it. The state furnishes the physical facilities and court functionaries and provides for selection, summoning and paying jurors. From arrest to ultimate release, and even aft-erwards on probation or parole, the accused is at least to some degree in the hands of this system. The lawyer, appointed or retained, is a crucial part of the adjudicatory machinery; indeed, since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), he has been not merely important but essential in more serious cases.1 Unless his aid is knowledgeably waived, the proceedings cannot validly take place without him.
While the state does not select the retained lawyer as it does the appointed counsel, it selects and controls the class from which he is drawn. It admits him to practice, and particular courts can bar him. We recognize the lawyer’s special status in an informal manner by referring to him as an “officer of the court.” Frequently the courts accept as true his representations, and at times even his testimony, without the necessity of his taking the usual witness’ oath. The prosecutor and the court, within bounds, command his presence and direct his timetable by deciding when to go forward with the case against his client. The form and order of his pleadings are closely prescribed by the state. State procedural rules govern his decisions in such critical matters as the necessity of giving advance notice of certain defenses and of making certain objections in order not to waive them. The fact that as advocate and counsel the lawyer is obligated to serve the interests of his client does not make him any less an actor in the state’s pervasive adjudicatory construct. State action comes from the attorney’s overall partic*1346ipation in the machinery of the judicial branch of a government of divided powers, not merely from what is known or should be known to some “responsible state official connected with the criminal proceeding who could have remedied the conduct.” 2
3. The merits
The factual fulcrum of the panel opinion was the action of Fitzgerald’s lawyers, pursuant to an agreement with the prosecutor, of “filling a hole” in the prosecution case by putting Fitzgerald on the stand to acknowledge, for purposes of enhancement, that he was the same person who had been convicted of robbery by assault in another county some seven years earlier.3 This testimony by the defendant discharged the state’s- burden, necessary to enhancement, of proving beyond reasonable doubt that he was the prior offender. The panel did not, and I do not, consider that defense counsel were ineffective in relying upon Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599, (1940), as a defense to the charge of robbing the jailer of two keys.
The matter of Fitzgerald’s testimony concerning the prior conviction was not raised in the state habeas proceeding. Fitzgerald only contended that his counsel were ineffective because they failed to advise him of a plea bargain offer and because they promised him the trial judge would direct a verdict of acquittal. Thus, while the state habeas judge conducted an evidentiary hearing and found counsel not ineffective, he did not address himself to the issue now under discussion.
The prosecutor’s testimony relating to Fitzgerald’s taking the stand to identify himself as the prior offender was in part quoted and in part paraphrased in the panel opinion. I set it out in full:
A [T]he other problem was the matter or [sic] proving and establishing identification; the identity of this man that was on trial here and the man over in McLennan County. I would say as of the date of the trial, I had not found anybody in McLennan County who was willing to come over here and testify that this man was the same and identical man that had been convicted in McLennan County. I did have, I had talked to an assistant district attorney, and I do not recall his name at this time, who was with the district attorney’s office in McLennan County, I had talked with him over the telephone and he was willing to come but he would give me no assurance that he could make the necessary identification, because he said he had no independent recollection of the fact of identification at that time. I was *1347prepared to bring this witness from Waco but it was going to necessitate the trial going over one more day and I advised the Court and I advised Col. Shown and Judge Martin of that fact and to obviate the necessity of bringing a witness over here, they agreed they would put Mr. Fitzgerald on the witness stand and have him stipulate that he was the same and identical person that was convicted in Mc-Lennan County. So, after the case was tried and resulted in the sentence it did, it bothered me some.
* * * * * *
A Well, you put me in a sort of a predicament here, because no lawyer likes to judge his peers but, I would have to say that the trial was conducted in such a way that I received, as the District Attorney, I received several windfalls. As for instance, the matter of the proving of the identity of the fellow; it just seemed to me like they were anxious to try the case and get it over with and get out of town. If I’m not mistaken, they stayed over the night after the trial was concluded and Mr. Fitzgerald was brought in court the next morning and sentenced, so they could leave town.
* * * * * *
Q Now, to be sure I understood what you said a moment ago about this matter, this possible witness from McLennan County, did I understand correctly that you told the the [sic] attorneys, Shown and Martin, that the case would have to go over another day for you to get your witness here from McLennan County and they elected to put Otis Ray Fitzgerald on the stand and testify to those facts, rather than spend another day in Anderson County?
A Yes, sir, they wanted to get the case over with that day.
The matter of Fitzgerald’s having been put on the stand to identify himself was raised for the first time before the federal habeas judge.4 He conducted no further evidentiary hearing but relied upon the state court hearing and finding. Although the specific claim arising from Fitzgerald’s having testified for the prosecution had surfaced for the first time in the federal court, the federal judge found: (a) that Fitzgerald was making the same contentions that he had made before the state ha-beas court; (b) that the merits of the factual contentions raised in federal court had been resolved in the state court hearing; (c) that all material facts presented by Fitzgerald were adequately developed at the state court hearing; (d) that the record of the state hearing touched upon all issues raised by Fitzgerald in his federal application. The federal judge adopted the state court’s findings and added his own conclusory finding from the record that Fitzgerald’s attorneys “did not fail to give effective assistance” to him. In view of the erroneous predicate, (a) through (d) just above, this separate but generalized finding that counsel were not ineffective cannot be construed as dispositive of the matter of defendant’s taking the stand to testify for the prosecution. Thus the issue which the panel recognized as central to the case has never been addressed by any fact-finding court. The majority dispose of this embarrassing fact by speculating about what a fact-finding court might have found if it had been presented with the issue. The crux of Judge Clark’s opinion on the merits is that while the evidence establishes that Prosecutor McDonald told defense counsel he had a witness coming the next day to identify Fitzgerald as the person who had committed the prior offense (and thereby procured the agreement to put Fitzgerald on the stand) there is no evidence that the prosecutor tipped his hand and told defense counsel that the expected witness was shaky and might not be able to make the identification. Recognizing that the record is ambiguous, Judge Clark assigns to it what he describes as “the most plausible reading” and con-*1348eludes that a trier of fact “could have concluded from a fair appraisal” that nothing more than the need for delay was communicated to the defense attorneys. No ease should turn on such ruminations, by this court sitting en banc and three levels removed from the fact-finding court.
Additionally, it seems to me that the majority’s critical premise — that [a fact-finder could conclude that] the defense counsel were never told the identification witness might not appear and would be shaky — should not change the result. Counsel were ineffective if, without determining whether Fitzgerald would be prejudiced, they gave away the protection afforded him by the requirement that he be identified beyond reasonable doubt as the person who committed the earlier offense. There is no evidence that the action of defense counsel benefited Fitzgerald in any way, tactics-wise, money-wise, or otherwise. The only evidence of the reason for counsel’s action is the prosecutor’s testimony that the defense lawyers were anxious to finish the case and get out of town.
I would uphold the panel opinion.5 But, if it is not to be upheld, then at the minimum the case should be remanded for further evidentiary hearing — federal or state — on the issue of just what defense counsel knew when they surrendered Fitzgerald’s possible defense against enhancement.6
Summarizing: (1) I agree that ineffectiveness of retained counsel is an error of constitutional proportions, but I do not agree that that principle is limited to the situation in which a responsible state official knew or should have known of the deficiency. (2) The predicate for the majority’s approach is a theory that in some circumstances the lack of effective counsel can be treated as deprivation of a right not fundamental and essential to a fair trial, a theory the Supreme Court has rejected. Finally, (3) I disagree on the merits.
. And today in all cases involving the possibility that the accused will lose his liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
. The concept that the failings of a criminal defendant’s retained lawyer do not constitute state action has a long pedigree. One important early and often-cited ancestor is Hudspeth v. McDonald, 120 F.2d 962 (CA10, 1941), whose theory has found favor in some of our opinions: e. g., Howard v. Beto, 375 F.2d 441 (CA5, 1967); Langford v. Alabama, 422 F.2d 760 (CA5, 1969); Johnson v. Smith, 447 F.2d 985 (CA 5, 1971); McGriff v. Wainwright, 431 F.2d 897 (CA5, 1970). In McDonald a federal criminal defendant claimed his lawyer was incompetent. Construing the Sixth Amendment, the Tenth Circuit drew a distinction between lacking assistance and being denied the right to assistance. Only denial — which the court implied would not occur unless the United States involved itself by providing an appointed lawyer — would give a defendant the right to challenge a conviction via habeas corpus. Since the defendant had hired his own lawyer, the court found that the gov-eminent had not denied him the right to effective assistance of counsel, and thus he could not seek habeas.
The words of the Sixth Amendment, lend little support to McDonald. Unlike the First Amendment which begins “Congress shall make no law . . .,” the Sixth Amendment does not forbid the government to deny defendants assistance of counsel. It says only that “the accused shall [by tradition a word signalling mandatoriness] enjoy the right ... to have the Assistance of Counsel.” In this light, the McDonald distinction between lacking assistance and being denied assistance seems artificial.
Such viability, if any, as McDonald enjoyed was laid to rest two decades later with Gideon’s trumpet. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. The panel characterized the prosecutor’s testimony concerning this as his “most crucial testimony.”
. No claim is made that it was by-passed in the state courts.
. Possibly it might be necessary to remand to determine, pursuant to the newly adopted principles relating to ineffective retained counsel, the extent to which appropriate state officials knew or should have known of counsel’s ineffectiveness. Additionally. I have not considered whether an appropriate remedy would be resentencing without enhancement rather than retrial.
. It seems to me appropriate to commend the prosecutor who was willing to come forward with testimony that exposed his own actions to question because he felt that he was a participant in injustice. The prosecutor’s position was not buried for 17 years. In 1954, immediately after Fitzgerald’s sentence commenced, the prosecutor wrote the Texas Pardon and Parole Board that an injustice had been done. He wrote the Board again as late as 1971.