dissenting.
The court’s opinion in this case fashions a new rule concerning the presence of criminal defense counsel at trial. “The absence of counsel during the taking of evidence on the defendant’s guilt is prejudicial per se and justifies an automatic grant of the writ [of habeas corpus]____” At 1263. Further, this rule will be applied even where counsel is retained, where counsel for co-defendants was conducting a vigorous and wide-ranging cross-examination during the absence, where there is not even the faintest speculation of any actual prejudice that may have occurred, and where every opportunity was given the absent counsel to undertake any further actions he wished when he returned. I do not believe this result is either required by precedent or sensible as policy, and I therefore respectfully dissent.
In simplest terms, what happened here was that retained defense counsel “ducked out” of a joint trial for an undetermined amount of time during the cross-examination of a key witness by counsel for co-defendants. This was concurred in by the other counsel and pursuant to the tactic of having only the other counsel cross-examine this witness.
I agree with the court that it was error for the judge to condone counsel’s absence, certainly without the defendant’s explicit consent. The issue at hand, though, is whether that error could be harmless, just as errors regarding trial instruction, admission of evidence, argumentation, confrontation, and other critical aspects of trial and other important constitutional rights have been held harmless. It is most remarkable that what happened here is barred from such analysis by the court’s per se rule, though far less fraught with potential for actual prejudice than in many harmless error cases.
Here, there is no indication that counsel’s assistance might have been considered ineffective had he simply sat at counsel table like a bump on a log during the afternoon cross-examination. The cross-examination that was conducted was probing and extensive. It was primarily directed to eliciting information exculpatory to all the defendants, and often dealt with matters that could have been exculpatory to Green. Unless we say that all counsel must “show the flag” on all cross-examinations, a trial tactic that may be highly dubious, counsel’s only sin here was absence during some portions of the cross-examination. Taken as a whole, counsel’s performance during trial cannot be considered to fall short of the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), nor can it be said that counsel “entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
The court’s per se rule, rather, takes its force from dicta in Cronic, which notes that some errors concerning sixth amendment rights may never be harmless, such as “complete denial of counsel.” 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984). However, the complete denial mentioned there clearly refers to a denial complete in terms of the process of truth-seeking. In fact, the quoted language closely follows the observation that the right to counsel
*1265is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the sixth amendment guarantee is generally not implicated.
Id. at 658, 104 S.Ct. at 2046.
Obviously, the absence of the particular retained counsel is “complete” every moment it is continued. Given the episodic nature of the absence, and the reason that counsel’s active participation was not required, the actions of retained counsel here are not “a complete denial of counsel” in the sense used in Cronic. The cases cited in Cronic, 466 U.S. at 659, 104 S.Ct. at 2047, and those cited in support of Cronic in this opinion, all involve instances where something having to do with the truth-seeking process was prevented by court ruling, or where the part to be played in that process by defense counsel was wholly absent.
Here, there is no hint or even speculation that what went into the record or into the ears of the jury would have differed if the error had not occurred. Nor is this an instance where counsel’s presence to object or take a strategic decision could have been crucial, nor where an opportunity was irrevocably waived. It elevates form over substance to equate what occurred here to the true denials of counsel cited in Cronic.
It is also quite strange that this per se rule is adopted very shortly after the Supreme Court, in Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and Delaware v. Van Arsdall, — U.S. -, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), reversed the holding of a number of circuits, including ours, that removing from the state the burden of proof on the key element of intent could never be harmless error. In any general weighing of the damage to a defendant or the damage to the truth-seeking process, the events here must rank far lower than the presumption which Rose held could be analyzed by traditional harmless error standards.
I reiterate that I do not condone the actions of counsel or court in this case. There are excellent reasons that presence of counsel at all times can be a vital protection for an accused. But so can be all the constitutional rights whose violations are frequently characterized as harmless. The facts of this case are a long way from, for an extreme example, taking of direct testimony against a single defendant whose counsel is absent.
Thus, I find no justification for a blanket rule of this type, and I think the facts of this case show why. If a reversal is mandated whenever counsel (even retained) is absent from the courtroom for any significant period, we make such an escape a sure ticket to a new trial. In multi-defendant cases, judges will be required to keep a continual head count, as in Stalag 17, lest cagey counsel be able to invoke this new rule.
This problem will be exacerbated by the difficulty of habeas and appellate courts, reviewing a cold record, in determining the presence or absence of counsel at all times. Again, this difficulty is well-illustrated by this case. On the one hand, some of the factual findings made by the district judge below are simply wrong. As this court notes, counsel was not absent for the entire afternoon session. At the same time, his presence is evidenced only by three requests, randomly spaced during the middle of the afternoon, for the witness to speak louder. Both parties had to go outside the record to assert the total length of counsel’s absence: five minutes by the government’s account, nearly two hours by the defendants’. It stretches the bounds of credulity of this judge to think that this type of issue can be handled appropriately by a blanket rule requiring reversal.
For all of the foregoing reasons, I dissent from the grant of the writ of habeas corpus on the current record.