dissenting.
The following opinion was written as a proposed majority opinion for the panel. Unfortunately my colleagues’ concern for the Sixth Amendment’s right to counsel proves to be considerably less than mine. I recognize fully that this is an appeal from a District Judge’s issuance of a writ of habeas corpus. So, of course, did the District Judge who issued this writ. But what was permitted here in state court was the prosecution’s penetration of defense counsel’s list of expert witnesses and subsequent deliberate employment under power of subpoena of crucial evidence from an expert witness chosen by defense counsel — all in order to influence the jury on the critical issue of this trial. The invasion of defendant counsel’s preparation for trial and the prosecutor’s deliberately making known to this jury that the prosecution’s key witness had originally been chosen to examine defendant by defendant’s lawyer undoubtedly had a powerful impact on the jury’s verdict on the insanity issue.
The Sixth Amendment provides, “In all criminal prosecutions the accused shall ... have the Assistance of Counsel for his defense.” For the state to use against the “accused his counsel’s efforts in the choice of *1418expert witnesses is to violate the constitutional command that the “accused shall .. . have the Assistance of Counsel for his defense.” Such a decision will also grossly interfere with defense counsel’s willingness to obtain a range of opinions in consulting expert witnesses and will tend to limit him to witnesses whose opinions are for sale.
The prosecutor’s action was clearly deliberate and clearly harmful. It was also very dirty pool.
This case involves a petition for habeas corpus, an insanity plea, and a very brutal murder. Defendant was tried on a plea of not guilty and not guilty by reason of insanity. A review of the record demonstrates that there was very substantial admissible evidence to support the jury’s guilty verdict absent consideration of the insanity plea. Two psychiatrists were called by the defense. They testified that Noggle was insane when he committed the murder. They were subsequently cross-examined by the state, not on that issue, but on what Noggle had told them (the psychiatrists) about the facts of the crime. He had, in fact, confessed completely to each of them to the facts of the killing.
The serious issue in this appeal — and the one on which the District Court based his grant of the writ — pertains to the state court’s handling of the psychiatric testimony of Dr. Resnick bearing on the insanity plea. The District Judge issued the writ on the basis of the prosecution’s calling to the witness stand Dr. Resnick, whom Noggle’s lawyer had asked to examine Noggle, who had done so but whose adverse testimony defendant’s attorney had not introduced. As the following excerpt from the record indicates, the prosecutor made Dr. Resnick’s prior association with the defense abundantly clear:
Q: Doctor, so there’s no misunderstanding, you’re appearing here this morning as a result of a subpoena I issued for your appearance?
A: That is correct.
Q: And, doctor, have you had occasion to examine one Donald Noggle?
A: Yes, I did....
Q: How did you happen to conduct an examination of Donald Noggle?
A: I received a request from the defense attorney, Mr. Paul Hoeffel.
Q: Doctor, is the individual that you conducted the examination on in the courtroom at this time?
A: Yes, he is... .
Q: I note you are referring to your notes, did you make notes during your examination?
A: Yes, I made notes during my examination.
Q: And spent some time preparing for this examination by reviewing other material?
Q: Yes, I did.
Q: What material in particular were you reviewing in reference to the defendant, Donald Noggle?
A: I reviewed the following specific materials — the medical psychological and psychiatric evaluation prepared by the Child Study Center, in Columbus; the Clinical Psycho-diagnostic material prepared by Dr. Carl Weitman; the defendant’s school transcript; his arrest records of the Bucyrus Police Department; the Pediatric-Psychiatric report of Dr. James Christopher and reports from Dr. Vocal.
Q: Doctor, when you conduct an initial examination what steps do you go through?
A: Ordinarily I would request of the referring attorney or court as complete a background as possible regarding information from the Prosecutor’s file, police reports, past medical and psychiatric reports and then I interview the defendant and if I think it’s indicated I may go on to suggest psychological testing.
Q: In the various reports you indicated you reviewed, those were provided for you by counsel?
A: The defense attorney did provide all of the reports that I mentioned.
The trial judge, over vigorous objection that it was a violation of the physician-patient and attorney/client privileges for the prosecutor to call the prospective psychiat*1419ric witness for the defendant, admitted the evidence before the jury.1 The prosecutor elicited the psychiatrist’s professional conclusion [which he had previously conveyed to Noggle and his attorney] that Noggle had not been mentally ill at the time of the murder.
Appellant in this case has been convicted of first degree murder for an offense committed at the age of 17. This record is replete with evidence that on the night in question, appellant entered the victim’s home and killed him by stabbing him 30 times with a bowie knife. He also stabbed the victim’s little dog to death.
After jury trial in an Ohio state court, he was found guilty and not insane. He was sentenced to life imprisonment — escaping the death penalty because the state trial judge found him to be suffering from “diminished mental capacity.” After exhaustion of appellate issues in the Ohio courts, appellant filed a petition for writ of habeas corpus in the U.S. District Court for the Southern District of Ohio alleging violation of his federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution. The habeas petition was heard and granted. The District Judge, in a comprehensive opinion, phrased the critical issue as follows:
Petitioner is now before this Court, through counsel, alleging he is in custody of respondent in violation of the Constitution of the United States in that:
* * * * * *
2. His right to effective assistance of counsel, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, was violated when the state was allowed to call Dr. Resnick, a psychiatrist consulted by the defense, as a rebuttal witness and question him as to statements made to him by petitioner during the course of his evaluation of the petitioner concerning petitioner’s participation in the crime.2
The District Judge recited the facts directly relevant to this issue as follows:
At. trial, the state’s evidence consisted of a plaster cast of a footprint from the scene of the crime which matched a print from one of petitioner’s left tennis shoe's, the testimony of Alvin Leon Morgan which implicated himself, petitioner, and one other as the perpetrators of the crime, and the testimony of Phillip Leut-hold, which consisted of relating incriminating statements petitioner made to him while both were undergoing diagnostic testing by the • Ohio Youth Commission.
During the presentation of the defense, counsel called Drs. Weitman and Vincencio as medical experts to testify on the issue of petitioner’s sanity. Both gave opinions, based on hypothetical questions assuming petitioner’s guilt, that petitioner was insane at the time of the act. On cross examination, counsel for the state asked both doctors to relate what petitioner had told them, during the course of their examinations, regarding his participation in the crime. Defense counsel objected strenuously when Dr. Weitman, the first medical expert to testify, was asked this question, and when *1420the trial court overruled his objection, defense counsel asked for, and received, a continuing objection to those questions. Defense counsel made no objection when the same questions were asked of Dr. Vin-cencio.
In rebuttal, the state called Dr. Resnick. Defense counsel again objected, first when he was called on the basis that Dr. Resnick had been employed by the defense, and again when the prosecution asked Dr. Res-nick what petitioner had told him regarding the incidents surrounding Mr. Grauer’s death. Both of these objections were also overruled. Dr. Resnick testified, as did the other experts, as to statements made to him by petitioner concerning his participation in the crime. He further testified that it was his opinion that petitioner was free of mental illness at the time of the incident.
The major part of the defense evidence centered on Noggle’s insanity plea. The defense called Noggle’s parents, teachers, and doctors in an effort to demonstrate that Noggle could not understand or control his acts on the night of the crime.
Donald Noggle grew up in a chaotic and violent atmosphere. His parents divorced when he was a year old, remarried, and then divorced again when he was 12. His mother abandoned the family when he was 9 and turned up a week later in a local jail. Moreover, Noggle’s mother, and on occasion his natural father, had severe drinking problems. For example, his mother testified that she and Robert Noggle would each drink 20 bottles of beer and proceed to fight, breaking the furniture in the house and on three occasions, her nose. His mother testified that she could not control her son’s behavior and that often he would stay out late at night for long periods of time.
One of Donald Noggle’s responses to this environment was withdrawal. To illustrate, the defense was able to call six witnesses who testified that Noggle had never exhibited any propensity for violence. The witnesses included his father, his mother, his stepfather, his employer, his juvenile probation officer, and his teacher. Both his father and his stepfather testified that Noggle was afraid of fights and would avoid them whenever possible. James Grady, his teacher, also testified that he had never seen Noggle exhibit any propensity for violence and that Noggle had never shown the aggressiveness needed to commit the murder.
There was also testimony concerning drug use. Noggle told one expert that he started using drugs at age 12. And, he was arrested for possession of marijuana in December 1976. His mother added that she knew he was using marijuana from 1973 or 1974 onwards. Moreover, Noggle’s juvenile probation officer offered the opinion that Noggle experimented with marijuana “with some consistency.”
On July 20, 1977, the night before the murder, Mrs. Noggle returned home from work in a “pretty intoxicated” state. After seeing Noggle sleeping on the couch with his clothes on, she went into the kitchen and tried to slit her wrists. Noggle woke up, also went into the kitchen and prevented her from doing this. Then, she told Noggle that she would wait for her husband to come home from work and that she would then go to an alcoholic treatment center in Tiffin, Ohio. Noggle strongly disagreed with this decision. When his stepfather and his family took her to the center the next morning, he remained at home, cursed at her, and told her that he never wanted to see her again. He also refused to visit her during the week she was at the treatment center.
Both the doctors who testified on behalf of Noggle relied partially on his family background. Each of them mentioned his resulting tremendous repression of feelings, and his dissociative mental state that subjected him to blank spells in high stress situations. Dr. Weitman characterized Noggle as a “timebomb”, who quite plausibly was “robot-like” on the night of the murder. Dr. Vincencio used the comparable term “sleep-walker” to describe Nog-gle’s dissociative state. The psychiatric evidence furnished by the defense shows the importance of Dr. Resnick’s testimony and indicates reason for my belief that its ad*1421mission could not be termed “harmless error”.
I believe that the state prosecutor’s calling of Dr. Resnick and the eliciting of his professional opinion upon the question of Noggle’s insanity was an invasion of Noggle’s Sixth Amendment right to counsel of such magnitude as to warrant the District Judge’s issuance of the writ. Such a procedure offends two basic tenets of the Sixth Amendment. First, the right to counsel secured by that Amendment contemplates the right to effective assistance of counsel. United States ex rel. Edney v. Smith, 425 F.Supp. 1038, 1048 (E.D.N.Y.1976), aff’d, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 97 S.Ct. 2683, 53 L.Ed.2d 276 (1977) [citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970)]. In United States v. Alvarez, 519 F.2d 1036 (3d Cir.1975), the U.S. Court of Appeals for the Third Circuit expounded on the implications of “effective Assistance of Counsel” in the context of the insanity defense as follows:
The effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting. If the expert is later used as a witness on behalf of the defendant, obviously the cloak of privilege ends. But when, as here, the defendant does not call the expert the same privilege applies with respect to communications from the defendant as applies to such communications to the attorney himself.
The issue here is whether a defense counsel in a case involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant’s mental condition may be forced to be an involuntary government witness. The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases. A psychiatrist will of necessity make inquiry about the facts surrounding the alleged crime, just as the attorney will. Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness.
The attorney should not be inhibited from consulting one or. more experts, with possibly conflicting views, by the fear that in doing so he may be assisting the government in meeting its burden of proof on the [United States v.] Currens [290 F.2d 751 (3d Cir.1961) ] issue. Thus we reject the contention that the assertion of insanity at the time of the offense waives the attorney-client privilege with respect to psychiatric consultations made in preparation for trial.
Id. at 1046-47.
In an analogous context, the U.S. District Court for the Northern District of California adopted the Alvarez approach, observing that, “Any other rule would mean that a defendant contemplating a psychiatric defense must run the risk that a psychiatrist he hired to advise him with respect to this mental state would be forced to be a government witness.” United States v. Layton, 90 F.R.D. 520, 525 (N.D.Cal.1981).
Secondly, permitting Dr. Resnick to testify runs counter to the notion that the invocation of the right to counsel marks the beginning of formal adversarial proceedings. From that point forward, maintenance of a fair individual-state balance demands that the state prove its case by resort to resources other than the defendant. Several Sixth Amendment interrogation cases demonstrate the point. For example, in Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977), the Supreme Court observed that, “This right guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice.” Similarly, in Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, *14221766, 12 L.Ed.2d 977 (1964), the Supreme Court held that “when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” In one of its more expansive and eloquent analyses of the importance of resisting incursions on the operation of an adversarial criminal justice system, the Supreme Court noted that:
Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from the practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end.... Under our system society carries the burden of proving its charges against the accused not out of his own mouth. It must establish its ease ... by evidence independently secured through skillful investigation. ‘The law will not suffer a prisoner to be the deluded instrument of his own conviction.’ 2 Hawkins, Pleas of the Crown, c. 46, § 34 (8th ed. 1824).” (Emphasis added).
Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801 (1949).3
The principle underlying the Sixth Amendment interrogation cases — maintenance of the adversarial system — applies with equal force to the Sixth Amendment interest implicated in this case. The integrity of that system prohibits the state from interfering with the defense effort of an accused by becoming reliant upon the defendant’s statements to prove the case against him. Similarly, the integrity of that system is offended by state interference with the defense effort by becoming reliant upon the defendant’s expert in order to establish sanity beyond a reasonable doubt. In either event, the requirement that the state be put to its proof by “evidence independently secured” has been contravened.
In addition to the difficulties raised by Dr. Resnick’s testimony, his appearance on the stand at the behest of the state interferes with the other Sixth Amendment concern articulated above — the assurance of effective assistance of counsel. It is clear on this record that Noggle agreed to Dr. Resnick’s examination on the advice of his counsel and that he talked freely with this psychiatrist under that circumstance. There is no indication in this record that he was ever warned that the evidence he was giving could be used against him but it may have been Dr. Resniek’s evidence, in particular his opinion that Noggle was sane at the time of the murder which persuaded the jury. Two medical opinions, of course, may be overborn in the minds of the jurors by one which they consider better reasoned, but Dr. Resnick’s opinion on the only critical issue in the case sounded with a totally impermissible authority. Indeed, the jury was told that he had been chosen by Nog-gle’s own attorney to supply a professional opinion but had been produced by the state when that opinion did not accord with the defendant’s interest.
The Sixth Amendment right to counsel must encompass counsel’s ability to seek expert opinion in the difficult area of psychiatry without playing Russian roulette with his client’s insanity plea in the event someone he chooses for an examination provides an opportunity which the prosecutor would like to exploit.
Two other issues are argued by the state to counter the objectionable character of this obvious invasion of the defendant’s right to full assistance of counsel. In the first of these, the state argues that the defendant waived any right to object to Dr. Resnick’s testimony by introducing psychiatric testimony of two other doctors. There is, however, no specific waiver in this record, either by Noggle or his lawyer, as to Dr. Resnick’s testimony. On the contrary, *1423Noggle’s counsel objected vigorously. For the reasons set forth above, no waiver should be implied.
The state’s second argument is that even if Dr. Resnick’s testimony did constitute an invasion of Noggle’s Sixth Amendment rights and even if this invasion was not waived, the testimony by Dr. Resnick that, in his opinion, Noggle was not insane, should be admitted because there would then be no' other way for the state’s case to be presented.
This argument, however, ignores the existence of the procedure carefully spelled out in Rule 12.2, Federal Rules of Criminal Procedure. This rule reads in applicable part:
(c) Psychiatric Examination. In an appropriate case the court may, upon motion of the attorney for the government, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
(d) Failure to Comply. If there is a failure to ... submit to an examination when ordered under subdivision (c) of this rule, the court may exclude the testimony of any expert witness offered by the defendant on the issue of his mental state.
This federal rule is clearly not applicable to this state trial, but it could have been employed by the state trial judge when he found himself confronted with the situation as described above. Under the federal rule, Noggle would have had to choose as to whether or. not he would submit himself to examination by a state psychiatrist (which in fact he refused to do)4 or be prohibited from submitting psychiatric evidence to support his claim of mental illness. See, e.g., United States v. Campbell, 675 F.2d 815, 820 (6th Cir.1982); Cf. United States v. Handy, 454 F.2d 885, 888 (9th Cir.1972), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972) (authorizing trial court, prior to the adoption of Rule 12.2, to condition admission of defense expert testimony on defendant’s submission to a psychiatric examination by a state expert). There is no reason why the trial judge could not, by his rulings, have followed the spirit and purpose of this rule, which is clearly designed to be fair both to the prosecutor and the defendant. But see, Granviel v. Estelle, 655 F.2d 673, 679-83 (5th Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982); United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff’d, 556 F.2d 556 (2d Cir.1977), cert. denied, 431 U.S. 958, 97 S.Ct. 2683, 53 L.Ed.2d 276 (1977).5
In the alternative, the trial judge could have ruled that the government could not call and cross-examine a psychiatrist chosen by defendant’s counsel, but could, as he did, *1424hold that they could cross-examine the witnesses called by the defendant, and further could employ a psychiatrist to sit in the courtroom during the psychiatric evidence and subsequently testify in relation to hypothetical questions concerning his opinions as to whether or not Noggle was sane at the time. Either of these procedures would have been infinitely closer than what was done in this case to complying with the right to counsel imbedded in the Sixth Amendment.
Accordingly, I respectfully dissent.
. The initial colloquy between defense counsel and the trial court over the admissibility of Dr. Resnick’s testimony reads as follows:
MR. WAGNER: Please the Court, we would object to Dr. Resnick being called as a witness for the State and would like to argue the objection out of the presence of the jury.
THE COURT: The jury will return to the jury room — remember the admonition of the court not to discuss this case.
THEREUPON, the jury left the courtroom and the following proceedings took place:
MR. WAGNER: This witness, Dr. Phillip Resnick, is and has been employed by the defendant in this cause, the objection is the physician-patient confidentiality; secondly, we respectfully submit that this doctor’s testimony and his report is part of the work product of the defense and it would be highly prejudicial to the rights of the defendant for him to give testimony at this time as a witness on direct examination for the State of Ohio.
. The petitioner has also raised a Fifth Amendment claim, based upon the psychiatrist’s testimony revealing admissions of Noggle on the issue of his commission of the criminal act. Because I would dispose of this case on Sixth Amendment grounds, I would not reach petitioner’s Fifth Amendment claim.
. Although Watts was decided on due process .grounds prior to the incorporation of the Fifth and Sixth Amendment to the states through the Fourteenth Amendment, it rests factually on a confession produced by extended interrogation in the absence of counsel. It thus can be viewed as residing where the Fifth Amendment shades imperceptibly into the Sixth.
. Noggle’s refusal to submit to an examination by a State psychiatrist should not prejudice his case, since in this instance, the State sought to overreach by requiring Noggle to sign a Fifth Amendment waiver as a precondition to such an examination. Under these circumstances, defense counsel’s reticence is understandable, and his choice to refuse the examination should not preclude admission of defense psychiatric testimony.
. I disagree with Granviel and Smith for two reasons. Firstly, I believe that the effectiveness of defense counsel is substantially eroded once the jury learns of the prior defense association of a psychiatrist who ultimately testifies for the. State. In Smith, Judge Weinstein in fact acknowledged that the communication of such a link results in substantial prejudice to the defendant, 425 F.Supp. at 1053. Although he suggested that the difficulty could be remedied by excluding information about nexus, such a proposal cannot be applied in this case. The prosecutor in this instance has graphically underscored the prior defense association of Dr. Resnick.
Secondly, I take issue with Granviel and Smith because neither case has, in my opinion, taken sufficient account of the incursion on the adversarial system attributable to permitting defense experts to testify for the State on the issue of insanity. I reiterate that the procedure utilized in this case contravenes the Sixth Amendment requirement that the State be put to its proof by “evidence independently secured.”