(Dissenting):
On the day his client was to face trial for murder in the first degree counsel had not spoken to the defendant “other than five minutes at a time over the last three months” (Record p. 37) and he had “not reviewed the Charles Brinkley files in excess of three months” (Id. at 36). An adjournment was sought by defense counsel not to permit him to prepare more adequately, but because he had been forced to neglect his other professional business during a series of arduous trials and, as he put it, an immediate trial of defendant “is a physical and economic hardship upon me,” (Id. at 35) and “I have been to my office one day in the last nine days” (Id. at 38). The court relented and agreed to hold a Huntley hearing at 10:00 A.M. on the next day, a Thursday, and to adjourn the trial at 1:00 P.M. until the following Monday at 10:00. The record is silent on how much, if any, of the three and one-half day respite was spent in preparing this case and how much on counsel’s necessary recuperation and attention to other professional commitments.
While the probability may seem small that any constitutional right to counsel was violated, application of the proper standard might have led the district judge to conduct a more searching inquiry. Litigants are entitled to a determination by a trial court applying the proper rule of law before an appellate court reviews the case.
The Second Circuit test of constitutional adequacy is whether the trial lawyer’s activity was “of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.” Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979), quoting United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). But cf. Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977) (modification of the test not necessary because the alleged deficiencies did not amount to ineffectiveness even under the standard of “reasonable competency.”).
The farce and mockery standard has been rejected in all other circuits in favor of a requirement that counsel for the defense act in a reasonably competent and skillful professional manner: see, e. g., District of Columbia: United States v. De Coster, 487 F.2d 1197 (D.C.Cir.1973); First Circuit: United States v. Bosch, 584 F.2d 1113 (1st Cir. 1978); Third Circuit: Moore v. United States, 432 F.2d 730 (3d Cir. 1970); Fourth Circuit: Coles v. Peyton, 389 F.2d 224 (4th *48Cir. 1968), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120; Fifth Circuit: MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified, 289 F.2d 928 (5th Cir. 1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; Sixth Circuit: Beasley v. United States, 491 F.2d 687 (6th Cir. 1974); Seventh Circuit: United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975) (“goes beyond” sham or mockery standard by requiring the “expected professional standard of competent counsel”); Eighth Circuit: United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) (“customary skills and diligence that a reasonably competent attorney would perform under similar circumstances” required under mockery test); Ninth Circuit: Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979); Tenth Circuit: Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980); in the most recent better reasoned state decisions: see, e. g., People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979); Fernandez v. United States, 375 A.2d 484 (D.C. 1977); State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975); Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974); Risher v. State, 523 P.2d 421 (Alaska 1974); State v. Thomas, 203 S.E.2d 445 (W.Va.1974); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973); and by the commentators: see, e. g., Kadish and Paulsen, Criminal Law and Its Process 806-816 (3d ed. 1975), id. 178-201 (1979 Supp.); Kamisar, LaFave and Israel, Modern Criminal Procedure 60-61 (4th ed. 1974), id. 16-18 (1979 Supp.); Bazelon, The Defective Assistance of Counsel, 42 U.Cinn. L.Rev. 1, 28 (1973) (the mockery of justice test “requires such a minimal level of performance from counsel that it is itself a mockery of the Sixth Amendment.”); Finer, Ineffective Assistance of Counsel, 59 Cornell L.Rev. 1077 (1973); Tague, The Attempt to Improve Criminal Defense Representation, 15 Am.Crim.L.Rev. 109 (1977); Stone, Ineffective Assistance of Counsel and Post-Conviction Relief in Criminal Cases, 7 Colum.Human Rights L.Rev. 427 (1975); Note, Identifying and Remedying Ineffective Assistance of Criminal Defense Counsel: A New Look After United States v. DeCoster, 93 Harv.L.Rev. 752 (1980).
The Second Circuit’s test demeans the Sixth Amendment’s guarantee of meaningful counsel, the guarantee of equality before the law embodied in Article III and the Fifth and Fourteenth Amendments to the Constitution, and the fundamental credo of the American Republic announced in our Declaration of Independence — “All Men are Created Equal.” It is a standard that falls far below this Circuit’s steady insistence on the realities of fundamental fairness and due process. Surely the state bars of Connecticut, New York and Vermont are no less capable than the rest of the American legal profession; this court does not compliment them by assigning a standard of competence in criminal cases each member of the court would indignantly reject were it to be used to test his or her own professional work.
Based upon extensive studies indicating dissatisfaction by federal judges with the inadequate representation in some cases, the Second Circuit Council has recently recommended that the district courts take steps to ensure against miscarriages of justice because of poor preparation and courtroom performance by lawyers. See Second Circuit 1979 Annual Report, pp. 20-21. Are the judges of this court confident that the level of representation in all state criminal trials is satisfactory? Are they satisfied that the articulation of a proper constitutional standard would not give greater assurance of a more effective criminal justice system?
There is a compelling need to inform the bench and bar of an effective representation requirement compatible with the Second Circuit’s other due process standards. This case should be remanded so the trial judge can apply the proper test.