concurs in the foregoing opinion.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in part and dissenting in part:I join in the court’s opinion insofar as it annuls, for inapplicability of Section 751(a), appellant’s conviction of escape from Saint Elizabeths Hospital.1 I cannot, however, accept the court’s outright rejection of the claim that, for lack of effective assistance of counsel, his conviction of armed robbery should also be overturned. Measured by the Sixth Amendment,2 the record leaves me gravely doubtful that appellant has been afforded his constitutional due; to boot, the District Court has had no opportunity to evaluate the facts in light of the principles recently laid down in Decoster III. 3 Like Judge Bazelon,4 I would remand the case for that purpose.
We in this circuit are committed to the proposition that the Sixth Amendment entitles one accused of crime “to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” 5 I believe, too, that once an accused establishes that his counsel’s performance fell below that level, the Government must demonstrate the absence of ensuing prejudice,6 and do so beyond a reasonable doubt.7 This latter view has not prevailed; a majority of the court maintains that the accused, though ineffectively represented, must further show a likelihood of harm therefrom, and that only then does the Government face the need to disprove actual injury.8 Tested by either precept, the instant case, I think, has yet to pass constitutional muster, and I respectfully dissent from affirmance at this juncture.
The record at numerous points reflects adversely upon the quality of the service rendered by appellant’s trial counsel,9 and two episodes were particularly serious. First, counsel planned to call only one ex*562pert who expectably would testify that appellant was mentally ill when he eloped from Saint Elizabeths. Not until the morning of the trial did counsel find out that this intended witness had been dismissed from the hospital’s staff for alleged incompetence, and that for this reason the District Court would not accept him as an expert. Then, though without ostensible means of eliciting an expert opinion favorable to insanity10 — appellant’s sole defense — counsel made no effort whatever to seek a continuance. Instead, he courted the disaster that soon was to befall his client by proceeding immediately to trial.11
The second glaring incident occurred amid the trial. A staff psychiatrist testified that his current diagnosis was based partly on facts given him by appellant’s mother. Later, at the hearing on remand,12 the mother disputed the facts hypothesized and added that in part the psychiatrist’s testimony was inaccurate.13 Counsel, however, had not interviewed appellant’s mother before trial, and consequently lost a much-needed opportunity to impeach.14
These inexplicable blunders, atop a generally unimpressive performance by counsel, leave me with deeply felt misgivings as to whether appellant had “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”15 And, since insanity was the only defense presented at trial, it is not readily apparent to me that prejudice to appellant was unlikely, or that actual harm to his cause was convincingly negated. The crowning consideration is that appellant’s hearing on remand was held prior to our decision in Decoster III, and consequently the District Court has had no opportunity to assess the case by the criteria there announced. I would therefore remand for fresh findings enabling a reliable conclusion on whether appellant’s conviction of armed robbery survives the Sixth Amendment’s stricture on ineffective assistance of counsel.
. Appellant was a patient at Saint Elizabeths after acquittal in a prior criminal proceeding by reason of insanity. 18 U.S.C. § 751(a) (1976) applies only when one has been confined by virtue of conviction. United States v. Powell, 164 U.S.App.D.C. 104, 105, 503 F.2d 195, 196 (1974).
. “In all criminal prosecutions, the accused shall . have the Assistance of Counsel for his defence.” U.S.Const., amend. VI.
. United States v. Decoster (Decoster III), 624 F.2d 196 (D.C. Cir. en banc 1979).
. Opinion of Judge Bazelon (Bazelon Op.) at 276-277.
. This standard, formulated in United States v. DeCoster (DeCoster I), 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (1973), gained the imprimatur of six judges in Decoster III, supra note 3: Opinion of MacKinnon, J., joined by Tamm and Robb, JJ., 199 U.S.App.D.C. at 385, 624 F.2d at 222 (“an attorney has a duty to his client to be a diligent and conscientious advocate and to provide reasonably competent assistance”); Statement of Wright, C. J., joined by Bazelon and Robinson, JJ., 199 U.S.App. D.C. at 463, 624 F.2d at 300 (“[t]he constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant’s diligent, conscientious advocate”).
. Decoster III, supra note 3, Opinion of Robinson, J„ 199 U.S.App.D.C. at 413-425, 624 F.2d at 250-262.
. Id. at 414-415, 423, 624 F.2d at 251-252, 260.
. Majority Opinion (Maj. Op.) 202 U.S.App. D.C. at-, 628 F.2d at 559; Decoster III, supra note 3, Opinion of Leventhal, J., 199 U.S. App.D.C. at 369, 374, 624 F.2d at 206, 211 (likelihood of harm); Opinion of MacKinnon, J., 199 U.S. App.D.C. at 395, 397, 624 F.2d at 232, 234 (actual prejudice).
. See, e. g., Bazelon Op. supra note 4, 200 U.S.App.D.C. at---,-, 624 F.2d at 570-571, 572.
. Trial Transcript of April 13, 1973 (pt. I) at 5-8; Remand Transcript of Nov. 8, 1974 (R. Tr.) at 136-139, 191-195.
. Today’s majority apparently subsumes the claim of prejudice from failure to seek a continuance under the “general problem of lack of adequate preparation.” Maj. Op. supra note 8, 202 U.S.App.D.C. at-, 628 F.2d at 557. The majority concedes that this problem is “troublesome,” id. at-, 628 F.2d at 559, but concludes that it need not be addressed, because even if it rose to the level of ineffective assistance, “there has been a lack of indication that it was a likely source of prejudice to the defendant,” id. at-, 628 F.2d at 560. I have difficulty in imagining a clearer source of potential prejudice than the inability of counsel depending solely on insanity to present any favorable expert witness, particularly where, as here, the Government had at its disposal an array of experts prepared to testify unfavorably.
. See Bazelon Op. supra note 4, 202 U.S.App. D.C. at-, 628 F.2d at 571.
. Transcript of April 13, 1972, (pt. II) at 165-170 (trial testimony of psychiatrist); R. Tr. at 65-66, 78-109 (remand testimony of mother).
. After testifying that “quite a bit of’ the psychiatrist’s testimony “was not true,” appellant’s mother was asked whether defense counsel had interviewed her. Her reply was:
“No. I had very little conversation with [counsel] .... I had very little conversation with him.” R. Tr. at 66. See also id. at 195-196 (counsel’s reasons for declining to call mother as witness).
. See text supra at note 5.
1. I agree to the reversal of appellant’s federal conviction for escape from St. Elizabeths Hospital. See United States v. Snyder, 529 F.2d 871 (D.C.Cir. 1976); United States v. Powell, 503 F.2d 195 (D.C.Cir. 1974).
2. Holloway v. United States, 148 F.2d 665, 667 (D.C.Cir.), cert. denied, 334 U.S. 852, 68 S.Ct. 1507, 92 L.Ed. 1774 (1945).
3. Washington v. United States, 390 F.2d 444, 453 (D.C.Cir. 1967).