concurring in part and dissenting in part:
I concur in Parts II-B and C of the Court’s opinion. With deference, I dissent from Part II-A and the final disposition of affirmance.
I cannot agree with the conclusion that the petitioner was not deprived of the assistance of counsel at a critical stage in the prosecution against him for murder. In' my view, the petitioner was the subject of a committal hearing on the murder charge, as provided by Ga.Code Ann. §§ 17-7-20 et seq., at which he was not represented by counsel. That hearing was a critical stage of the State’s prosecution of the petitioner for murder, and reversal of the petitioner’s conviction is therefore automatic under Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).
(a) Standard of Review
The district court’s conclusions that the petitioner was not the subject of a committal hearing at which he was unrepresented and that, even if it were a committal hearing, he was represented by his co-defendants’ attorney, Millard Farmer, are mixed questions of law and fact which are freely reviewable. See Strickland v. Washington, - U.S. -, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Baty v. Balkcom, 661 F.2d 391, 394-95 n. 7 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982).1 These conclusions are more than simply findings of primary or historical fact. They are also conclusions as to the Sixth and Fourteenth Amendment implications of such facts. In any event, even if this were an appropriate case for deferential review, in my view the record amply demonstrates that these conclusions by the district court were clearly erroneous.
(b) The Committal Hearing
Under Georgia law, a committal hearing may be held to determine if probable cause exists to believe an accused guilty of an offense charged and, if so, to bind him over to a grand jury for indictment. Neal v. State, 160 Ga.App. 498, 499, 287 S.E.2d 399 (1981). Such a hearing is not a required step in a criminal prosecution and is obviated once an indictment issues for the crime charged. State v. Middlebrooks, 236 Ga. 52, 55, 222 S.E.2d 343 (1976); Sims v. State, 148 Ga.App. 733, 733, 252 S.E.2d 910 (1979). Nor is an adversarial hearing constitutionally necessary in order to make a probable cause determination. Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975).
However, when such a hearing is provided, at which a suspect is afforded an opportunity to cross-examine the prosecution’s witnesses, it constitutes a “critical stage” in the prosecution, at which the suspect is constitutionally entitled to the assistance of counsel. Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970); State v. Hightower, 236 Ga. 58, 59, 222 S.E.2d 333 (1976). It makes no difference that the suspect may not have been entitled to such a hearing. So long as one is held, he is entitled to the assistance of counsel. Coleman, 399 U.S. at 8-10, 90 S.Ct. at 2002-2004. In my mind, there is no question that this was a committal hearing as to the petitioner. Indeed the prosecutor, in his opening remarks at the hearing said as much:
Judge, the proceeding we’re here for today is for a committal hearing in Cook *1457County, on charges against Larry Donnell Fleming and Henry Willis, III., charged with the offense of armed robbery of Farrell Kent, and also the armed robbery ' charge against Henry Willis, III., charging him with the armed robbery of another place here in Cook County. By agreement of counsel and by stipulation, and this is subject to correction by counsel for the Defendants, we are also having a committal hearing before this Court with respect to the charges which are pending in Lanier County, Georgia, charging the Defendants, Larry Donnell Fleming, Son H. Fleming and Henry Willis, III., with the offense of murder of James Edward Giddens.
(Emphasis added.)
Although the magistrate in the habeas proceeding below made a proposed finding that the May 14, 1976, proceeding was a committal hearing, the district court chose instead to characterize it as an “agreed upon discovery conference.” 2 The court apparently arrived at this conclusion on the ground that a committal hearing was unnecessary because the petitioner was already under indictment on the kidnapping charges in Berrien County.
This is entirely beside the point. In the first place, if the kidnapping charges had been disposed of in any way favorable to the petitioner — such as by an acquittal— prior to the return of an indictment on the murder charge, the evidence developed at the May 14 hearing would certainly have provided the prosecution with sufficient probable cause to bind the petitioner over to the Lanier County grand jury on the murder charges. As the prosecutor stated in his opening remarks at the May 14 hearing, a committal hearing was unwarranted only as to the kidnapping charges, and it was as to those charges alone, on which an indictment had been returned, that the hearing was solely for discovery purposes.
Second, the May 14 hearing, however the district court chooses to characterize it, was precisely the sort of proceeding which was at issue in Coleman v. Alabama. Indeed the Supreme Court there found the Alabama preliminary hearing to be a critical stage in the prosecution precisely because it was a proceeding at which the prosecution’s witnesses could first be subjected to cross-examination:
Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against its client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
399 U.S. at 9, 90 S.Ct. at 2003.
Thus, I would conclude that the May 14 hearing was the sort of preliminary hearing which the Supreme Court has held to be a critical stage in a criminal prosecution.
It is also clear to me that the petitioner was a subject of the committal hearing. This, too, is obvious from the prosecutor’s opening remarks quoted above. The petitioner was present at the hearing, sitting at counsel table.3 Statements which the peti*1458tioner had made in response to police interrogation were introduced into evidence by the state. Prosecution witnesses testified against the petitioner as well as against his co-defendants and pointed him out when asked to identify the person about whom they were testifying. In the face of these facts, prosecutor Vickers Neugent’s bald after-the-fact assertion that the petitioner was not participating because his attorney on the kidnapping charge had declined to participate is not worthy of consideration. In my view, it simply cannot seriously be contended that the petitioner was not a subject of this committal hearing as to the Lanier County murder charges, for purposes of constitutional inquiry.
Since this was a committal hearing on the murder charge against the petitioner, the critical questions are whether the petitioner was represented by counsel at the hearing and, if not, whether he effectively waived his right to the assistance of counsel.
The respondent argues that, at the time of the committal hearing, the petitioner was represented with respect to the murder charge either by Edward Parrish, who had been appointed to defend the petitioner against the kidnapping charge in Berrien County; or by Millard Farmer, who represented the petitioner’s co-defendants, Larry Donnell Fleming and Henry Willis, III, in the committal hearing. In my view, it is clear that neither of these attorneys represented the petitioner at the time of the committal hearing with respect to the murder charge on which he was ultimately tried and convicted.
In the first place, at the time of the committal hearing, Mr. Parrish had never been appointed to defend the petitioner against the Lanier County murder charge, and the district court’s finding to the contrary is clearly erroneous. He had been appointed by Judge H.W. Lott sometime in late April 1976 to defend the petitioner against the kidnapping charge, for which the petitioner had already been indicted.4 An arraignment was had on that charge on April 30, 1976, and trial was scheduled for mid-June, 1976. At that time it was clear that no action could be taken on the murder charges in Lanier County until that county’s grand jury reconvened in September 1976.
Meantime, Mr. Parrish was certain, as well as relieved, as he testified at the habe-as proceeding, that he had not been appointed with respect to the murder charge. Indeed, when in August 1976 it was apparent that the petitioner had not yet been able to retain counsel, Judge Lott appointed one Reese Franklin to represent the petitioner in his murder trial. Thus, clearly, the judge who had appointed Mr. Parrish in April was not under the impression that Mr. Parrish had been appointed to represent the petitioner with respect to anything other than the kidnapping charge. It was only after Mr. Franklin was disqualified that Judge Lott, on August 24, 1976, appointed Mr. Parrish on the petitioner’s murder charge because of Mr. Parrish’s familiarity with the case. By that time.it was clear that the state was not going to proceed on the kidnapping charge until after the far more serious murder charges had been disposed of, if at all.
Thus, in my view, the record simply does not support the district court’s conclusion that Mr. Parrish was the petitioner’s attorney with respect to the murder charge. That he was specifically appointed as his attorney with respect to a related charge is immaterial. He had not been appointed to represent the petitioner against the murder charge, and thus he was not petitioner’s counsel with respect to that charge at the *1459time of the committal hearing. Nor did he in any way undertake to assume such a representation. He specifically declined to participate in the hearing beforehand and attended only a part of it, as a spectator.
The majority has concluded that, even if this were a committal hearing on the murder charges pending against the petitioner, the petitioner was in fact represented at the hearing by Millard Farmer, counsel for the petitioner’s co-defendants. With this I cannot agree.
It is true that the transcript of the hearing refers to Millard Farmer as counsel “for the Defendants” and that prosecutor Neugent in his opening remarks likewise referred to Mr. Farmer as “counsel for the Defendants.” It is also true that Mr. Farmer is not reported to have made any clarification to the court about his status with respect to the petitioner. Nor does the transcript indicate that either the petitioner or Mr. Parrish attempted to correct the record on this point.
Be that as it may, the record of the proceeding below amply demonstrates that Millard Farmer did not represent the petitioner at the committal hearing and that in fact he could not have represented him,owing to a conflict of interest between the petitioner and his co-defendants.
It is undisputed that Mr. Farmer sought the committal hearing only on behalf of the petitioner’s co-defendants and that Mr. Neugent, the prosecutor, knew that he did not represent the petitioner. Prior to the hearing, the court-appointed attorney for Larry Fleming, the petitioner’s co-defendant, asked that Mr. Farmer assist in Larry Fleming’s defense. Larry Fleming in turn asked Mr. Farmer to represent Henry Willis as well, to which Mr. Farmer agreed. Mr. Farmer then contacted Mr. Neugent on behalf of the petitioner’s co-defendants to arrange for a committal hearing. Mr. Neu-gent, in turn, contacted Mr. Parrish to advise him that a committal hearing was being arranged. Mr. Parrish insisted that neither he nor his client would participate. Despite this, Mr. Neugent informed Mr. Parrish that the petitioner would be brought to the hearing whether or not he and his counsel were formal “participants.”
The prosecutor thus proceeded against the petitioner, as well as against his co-defendants, knowing that the petitioner’s court-appointed attorney was not participating and that the petitioner was not otherwise represented by counsel. That this critical stage in the petitioner’s murder prosecution was permitted to go forward without any representation on the petitioner’s behalf was thus directly attributable to the state, through its district attorney. Cf. Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980) (state unconstitutionally deprives defendant of liberty where it obtains conviction through trial at which defense counsel does not provide adequate legal assistance).
In any event, Millard Farmer could not have properly represented both the petitioner and his co-defendants because of an actual and substantial conflict of interest which had already been manifested in their respective statements to the police. So long as an actual conflict of interest exists between jointly represented co-defendants, which adversely affects the adequacy of one or more defendants’ representation, there is a denial of counsel which necessitates reversal without further inquiry into prejudice. See Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1718-19; Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).
Our Court has adopted a test for determining whether a conflict of interest exists between co-defendants:
A conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also defending.
Turnquest v. Wainwright, 651 F.2d 331, 333 (5th Cir., Unit B, 1981); Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir. 1976).
The statements made by Larry Fleming to the police after the arrest of the three *1460defendants plainly contradict those made by the petitioner. Moreover, it is clear from the two defendants’ statements that each was seeking to incriminate the other in order to exculpate himself. Cf. Johnson v. Hopper, 639 F.2d 236, 237 (5th Cir.), cert. denied, 454 U.S. 1010, 102 S.Ct. 548, 70 L.Ed.2d 412 (1981); Foxworth, 516 F.2d at 1077 (where no one other than defendants witnessed murder, substantial possibility that one defendant would further own defense by placing sole responsibility on another).
Thus, in a statement made and signed on February 16, 1976, the petitioner stated, concerning the murder of Chief Giddens:
We stopped the car and Larry and the other boy told the policeman to get out and Larry had the policeman’s gun and the other boy had a .22 pistol. The policeman got out of the car and started running out into a pond and Larry and the other boy were shooting at him and the policeman hollered that he was hit. Larry and the other boy then said we can’t leave him like this and they waded out in the pond and I heard some more shots that sounded like they come from the .22 pistol.
Larry Fleming, on the other hand, said in a statement dated February 12, 1976:
As they were walking I heard the policeman start to run as I could hear someone running through the water and then I heard six or seven shots fired and I then got out of the car and told the other two not to kill him. I looked out in the water where the policeman run and I could not see him.
In my judgment, these statements reveal such a fundamental conflict between the defenses of the petitioner and his nephew and co-defendant, that Millard Farmer could not possibly have provided adequate representation to both.
Since the prosecution knew that the petitioner was unrepresented at the hearing, it is of no consequence that the judge presiding at the hearing was not formally advised that the petitioner was not represented by Mr. Farmer. Indeed, in my view, the hearing judge was under an affirmative duty to inquire whether Mr. Farmer represented the petitioner once there were sufficient facts before him indicating the possibility of a conflict of interest between the defendants. See Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). There is authority in this Circuit that the mere fact that the only witnesses to the murder were the defendants themselves was sufficient reason for the judge to inquire, in view of the substantial possibility that each would emphasize another’s guilt to exonerate themselves. See Foxworth, 576 F.2d at 1077. In any event, once the prosecution introduced the statements of the three defendants, even a cursory reading of those statements would have revealed the existence of an actual and substantial conflict of interest.5 At that time the judge would certainly have been under a duty to inquire. Such an inquiry would have revealed that the petitioner was not represented by counsel at the hearing.
Neither Mr. Farmer nor Mr. Parrish believed that Mr. Farmer was representing petitioner at the hearing. Consequently, none of the attorneys involved understood Mr. Farmer to be representing all three defendants. Since he was not, this is not a case of multiple representation.' Instead, it is simply a case where two of three co-defendants were represented and the other was not.
Since the petitioner was not represented by counsel at the committal hearing, the question remains whether he knowingly and intelligently waived his right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The right to counsel must be affirmatively waived, and the mere failure to *1461request counsel will not be deemed a waiver. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70 (1962); Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (en banc). Thus, the petitioner’s own failure to demand representation at the hearing was not a waiver of his right to counsel. Moreover, since Mr. Parrish served in no capacity other than as appointed counsel on the kidnapping charge, he had no authority to waive the petitioner’s right to be represented at the committal hearing on the murder charge.
(c) The Appropriate Relief
In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the Supreme Court held:
[W]hen a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] (1963); Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114] (1961); White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193] (1963).
Holloway, 435 U.S. at 489, 98 S.Ct. at 1181.
In my view, Holloway overrules Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), to the extent that Coleman applied a harmless error standard to this sort of violation of the right to counsel. See Coleman, 399 U.S. at 11, 90 5. Ct. at 2004. Holloway makes it clear that the deprivation of counsel at a critical stage in a prosecution where the death penalty is sought or imposed is so inherently unfair that prejudice is presumed and reversal of the conviction is automatic. It may be, as the Sixth Circuit has recently concluded, that the harmless error standard utilized in Coleman is still applicable to denial of counsel claims where the conviction is for a non-capital offense. See McKeldin v. Rose, 631 F.2d 458, 460 (6th Cir.1980), cert. denied 450 U.S. 969, 101 S.Ct. 1488, 67 L.Ed.2d 619 (1981). However, under Holloway, the rule is otherwise when a capital conviction is involved.
Reversal is mandatory regardless of the stage at which counsel was denied and regardless of the form which the denial of counsel took. That this is so is clear from two of the cases on which the court relied for its holding in Holloway.6 In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the Supreme Court reversed a conviction where counsel had been absent at the arraignment, at which any available defenses, including insanity, had to be pleaded. The Court declined to inquire whether any defenses were actually available to the defendant, holding instead that prejudice was presumed. Id. at 55, 82 S.Ct. at 159.
In White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), also cited in Holloway, the defendant pleaded guilty at a preliminary hearing, at which he was not represented by counsel. Although he subsequently changed his plea to not guilty and not guilty by reason of insanity at a subsequent arraignment, at which he was represented by an attorney, the Supreme Court concluded that the absence of counsel at the preliminary hearing required reversal, adding, “[W]e do not stop to determine whether prejudice resulted.” White, 373 U.S. at 60, 83 S.Ct. at 1051.7
Since it is my belief that the petitioner was denied the right to counsel at a committal hearing which, under the circumstances, was a critical stage in his prosecution for murder, and since he did not waive *1462that right, reversal of his conviction is required. I would therefore reverse the judgment of the district court and direct the issuance of a writ of habeas corpus.
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981). Id. at 1209.
. The magistrate concluded, as I do, that the petitioner was subjected to a committal hearing without counsel and that reversal of his murder conviction is therefore automatic. The district judge rejected the magistrate’s proposed findings and recommendations in their entirety.
. Indeed, it appears that the state compelled his presence despite the insistence of his attorney as *1458to the kidnapping charge, Edward Parrish, that neither he nor the petitioner was to participate. Vickers Neugent, the district attorney, acknowledged at the habeas hearing that, he had told Mr. Parrish that the petitioner would be at the committal hearing whether he or his counsel chose to participate or not.
. Although Mr. Parrish has testified that he thinks he had been appointed with respect to the armed robbery charges in Cook County, it is clear to me from the entirety of his testimony that he was confusing the armed robbery and kidnapping charges and was referring to whichever charge the petitioner was under indictment for, i.e., the kidnapping charge.
. Apart from questions of conflict of interest, if, as Mr. Parrish and Mr. Farmer have testified, the petitioner in fact sat apart from his co-defendants and their counsel and clearly did not participate in any discussions with Mr. Farmer, while his co-defendants did, such circumstances would also have placed on the judge a duty to inquire whether Mr. Farmer in fact represented all three defendants.
. In Holloway, the Court reversed a conviction on the ground that the trial judge, over timely objection, had improperly required joint representation of several co-defendants whose interests were in conflict. The Court concluded that prejudice was to be presumed without the necessity of an actual showing. Id. 435 U.S. at 488-89, 98 S.Ct. at 1180-81.
. The prosecution, without objection, introduced the original guilty plea as evidence against the defendant at his trial. Noting the defendant’s failure to object, the Supreme Court concluded that it was not necessary to show prejudice. Id. at 60 n. *, 83 S.Ct. at 1051 n. *.