(concurring in part, dissenting in part):
I concur in the result and in Part I of the opinion. I do not accept the implication in Part II that counsel may have violated some duty owed to his client, although that violation was “inconsequential”.
Trial counsel should not be required to proceed by the numbers, in precise conformity with a check list of duties articulated in appellate cloisters. A criminal case cannot be tried by rote; in the dust and heat of trial, when quick decisions must be made, counsel must be free to rely upon his intuitive judgment based upon his experience and his estimate of the situation with which he is confronted at the moment. If this were not so, then any lawyer worth his salt would hesitate to accept appointment to defend an indigent charged with crime.
Trial counsel here had been a member of the bar for some sixteen years, had tried hundreds of cases, and as the District Court found “was recognized as one of the finer trial lawyers”. He had served in the Public Defenders Office, in the Department of Justice, and as an assistant United States Attorney. He was on the District Court’s accredited list for Criminal Justice Act appointments. He made sound and reasonable decisions based upon his experience and common sense. As the District Court found, and the majority concedes, events have proved him right. I would not suggest that he may have been at fault because he did not precisely follow a prescribed drill.