(concurring).
Although I concur in the result reached by the majority, I do so for different reasons. And while I agree with much of what Judge Wyzanski says generally about the effective assistance of counsel when defending one charged with a criminal offense, I do not believe it can be determined from the record in this case that Bradley and Cohan were guilty of “grossly incompetent professional conduct” in their efforts on behalf of Williams. In my view the critical problems in this case derive instead from the actions of the State of Illinois in placing defendant Williams in a position where reasoned choice as to the advisability of seeking a continuance became nearly impossible, and where his appointed counsel were forced to evaluate a very serious felony charge and recommend a critical decision regarding trial strategy without even an opportunity for a private meeting with their client. Under these circumstances I do not believe that success can be the measure of professional competence. While it is possible that Bradley and Cohan did not seek a continuance through oversight or lack of diligence, it is also possible that Williams insisted that the trial proceed based on his own hurried evaluation of the options available. The district judge-found that Williams chose to go to trial “in the hope that the state would be unable to meet its burden of proof” and that this was “in the nature of a tactical choice.” I would accept this finding and hold that under the circumstances of this case Williams was entitled to, but did not receive, effective assistance of counsel in making this critical decision.
As the majority points out, counsel for Mr. Williams was appointed July 31, 1968. When the appointment was made it was clear that Mr. Bradley would be unable to devote significant attention to Mr. Williams’ case until the conclusion of a murder trial then in progress. Nevertheless the Williams case was placed on the trial call for August 2, 1968, a mere two days later. Judge Wilson, who appointed Bradley to be Williams’ attorney and who set the case for trial on August 2, was presiding over the murder trial in which Bradley was engaged and was thus fully aware of the difficulty involved in the August 2 trial date. Judge Wilson was presumably also aware of the fact that Williams had been incarcerated for 110 days at the time of his arraignment and that the Illinois 120 day rule was therefore becoming an important consideration both for Williams and for the state. Yet he called Williams’ case for trial on August 2.
The record is clear that when Williams’ case was first called Bradley had been unable to consult with his client for more than 10 or 15 minutes. This does not appear to be due to any laxity on *642Bradley’s part since he had only concluded his murder trial on the previous day. These circumstances were communicated to Judge Wilson along with a request for additional time to talk to Williams who had already indicated his desire to go to trial. A short recess ensued, after which Judge Wilson held a conference in his chambers. During this conference it became perfectly obvious that Bradley could not have prepared for trial in the time given him and that he and Mr. Cohan were in fact unprepared. Yet Judge Wilson persisted in characterizing the situation in terms of Williams’ “demand” for trial. While Bradley showed great reluctance about the situation and made several veiled attempts to secure an additional period of time in which to prepare, Judge Wilson showed no hesitancy in the matter and in fact ended the conference by directly asking Williams if he still wanted to go to trial. When Williams responded that he did, Judge Wilson concluded, “All right, go ahead. Mr. Williams is demanding trial. And we will proceed right now.” 1
*643I believe that Williams’ decision to go to trial was not an informed or intelligent decision and therefore did not waive his right to effective assistance of counsel. Williams could only have enjoyed such assistance by seeking a delay sufficient for both him and his appointed attorneys to evaluate the case against him and to consider the possible- witnesses to be called in his defense. His decision to go to trial was' so much a product of the state’s inexcusable delay in setting an arraignment and appointing counsel that it cannot be relied upon to validate his trial. Faced as he was with a confusing welter of information, including a suggestion that the .state might not be ready, a fast explanation of the 120 day rule and the possible consequences of seeking a continuance at the end of the 120 day period, an offer of a plea bargain, and the prospect of a trial that very day, Williams’ decision to fore-go a fully prepared defense could only have been an act of desperation.2 By delaying both the trial and the appoint*644ment of counsel as it did, the state denied Williams sufficient time to think about his decision and it cannot now rely on that decision to support his conviction.
. When the case was originally called, Bradley indicated his lack of opportunity to confer with Williams and his reluctance either to go to trial or to ask a continuance:
MR. BRADLEY: As your Honor knows, this case came to this Court Wednesday while the State’s Attorney and myself and the Court were engaged in a jury and then it was set over until today. I have talked to the defendant for maybe ten minutes in the bullpen. And at this time I am not either ready to answer ready or to make a determination of whether there should be a continuance. I would like some time to talk to the defendant.
THE COURT: We can’t keep this in suspension all morning.
Is the State answering ready?
MR. FRIEDMAN: Yes, absolutely. And the defendant has indicated he wishes to proceed.
MR. BRADLEY: The defendant has indicated that but, as you know, I have to make certain determinations as to whether it is in our best interests, and to advise my client.
THE COURT: We will pass the case. After a brief recess the case was again called, and at the request of Bradley a conference was held in chambers. At this time Bradley again stressed the time problems involved and reminded the court that Mr. Cohan would be trying the case:
MR. BRADLEY: Judge, as you know, this matter came up Wednesday off arraignment. At that time I was in the middle of a murder trial and didn’t make any preliminary motions. And Mr. Coyntee [sic] has indicated he wants to go to trial today. But I would ask that the State agree that we are not waiving preliminary motions by starting to pick a jury today, that they will furnish us with a list of witnesses with an indication if there are any oral statements and an indication of any physical evidence that is going to be introduced, and certainly an indication if there is any written statements. And at this time we would like to reserve our right to make, motions to suppress, if any of those things should come up when the State furnishes that information.
Is that agreeable, Mr. Friedman?
MR. FRIEDMAN: I would think it would have been incumbent upon the defense to file any motions in the case itself when the case came off arraignment to His Honor’s courtroom. It was Mr. Williams who has requested to proceed, although Mr. Bradley pointed out he is leaving on vacation. And in view of the fact that we have a new Public Defender here, Mr. Williams is the one who is requesting to proceed, answering ready, and I think he does so at his own peril.
MR. BRADLEY: May I reply briefly? This man has been in custody since April 12, 1968. He was brought to this courtroom for the first time—
THE COURT: He is demanding trial.
MR. BRADLEY: I certainly understand that, but I think he has a right to the effective assistance of counsel. And in trying to expedite this I am sure that by some sort of agreement the State will provide the things they are required to provide before trial, with enough time to properly make motions for—
THE COURT: I am not making up my mind at this time, we will cover that area when we get there.
THE COURT: Have you given him a list of witnesses, or anything yet?
MR. FRIEDMAN: Pardon me?
THE COURT: Have you furnished him with a list of witnesses?
MR. BRADLEY: Yes, Your Honor, that was furnished to the Public Defender.
THE COURT: The oral statements or written statements?
MR. FRIEDMAN: I will offer no oral statements of this defendant.
THE COURT: There have been no written confessions?
MR. FRIEDMAN: No, sir.
THE COURT: I don’t think we have any problem.
MR. BRADLEY: As to this point—
*643THE COURT: The man is demanding trial today without preparation?
MR. BRADLEY: As to this point I didn’t want to waive his right to statements.
THE COURT: You wouldn’t be waiving it.
MR. BRADLEY: I wanted this clear in the record.
THE COURT: I am sure on any evidence they will let you examine it prior to the actual trial.
MR. FRIEDMAN: Absolutely.
THE COURT: Williams, you still want to go to trial today?
THE DEFENDANT: Yes.
THE COURT: All right, go ahead.
Mr. Williams is demanding trial. And we will proceed right now.
The trial followed immediately.
. Our recent opinion in United States v. Miller, 508 F.2d 444 (7th Cir. 1974), is instructive regarding late appointment of counsel in the criminal context:
Jordan’s counsel was appointed only two days prior to trial. The record does not indicate that the delay in the appointment of Jordan’s counsel was in any way attributable to the defendant or to his attorney. In addition, Jordan was incarcerated during the period prior to trial, and was therefore unable to assist in the investigation of charges against him.
In United States v. Knight, 443 F.2d 174 (1971), the Sixth Circuit held the failure to grant a continuance under circumstances similar to those before us to constitute an abuse of the district judge’s discretion, stating that:
“We hold that prejudice is inherent under the facts and circumstances of the present case. The newly employed attorney for appellants, no matter how competent and experienced, could not be expected to prepare adequately during a thirty minute recess for a trial which would extend over a period of two days. While fully cognizant of the crowded condition of the dockets and the heavy workload carried by the experienced and able District Judge who tried the present case, we are compelled to the conclusion that failure to grant a continuance to allow counsel at least some time to prepare for the trial constituted an abuse of discretion”. 443 F.2d 178.
In the present case, the motion for continuance was presented one day after counsel’s appointment and one day prior to trial. We fail to see how counsel could have been expected to seek discovery, prepare jury instructions, interview prospective witnesses, research law, prepare his opening statement and summation, interview his client and perform the numerous other tasks and duties necessary to insure adequate representation by counsel. As Justice Black stated in Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940):
“But the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.”
Although the granting or denial of a motion for continuance is a matter within the sound discretion of the district court, and is normally not grounds for reversal on appeal, Avery v. Alabama, supra, we must conclude that in the instant case the district judge, for the foregoing reasons, abused his discretion in denying the motion for a continuance. Accordingly, Jordan’s conviction is reversed.
Adthough Miller involved the denial of a continuance requested by a defendant in that case, we believe the considerations which led to reversal of conviction there apply here as well. The very decision not to seek a continuance in the present case was tainted by the Government’s delay in appointing counsel until the very end of the 120 day period.