dissenting:
What Chief Judge Winter has written in dissent states eloquently and lucidly why the majority, to my mind, has lapsed into imprecise thinking and disregard of the American Constitution’s Sixth Amendment guarantee to the rights to counsel for those accused of crime. I write in dissent only to state additional reasons why that is so.
The majority seems to agree that United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977), and Stubbs v. Borden-kircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983), both of which indicate there is constitutional error here mandating a new trial, “continue to govern” (majority Slip Op. at 4), except to the extent, if any, the Supreme Court decisions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) may implicitly compel an opposite result. The difference between the two situations is, however, not insubstantial, namely, (a) one is where counsel is fully and effectively denied for part of the trial and (b) the other is where counsel is constantly available to the defendant but acts for part of the time in an ineffective manner. It is logically impossible to argue that no counsel is effective counsel. There is simply no counsel effective or ineffective. It is another thing to contend that counsel who was on the scene all the time and available to the defendant was not ineffective or that his ineffectiveness did not occasion prejudice.
*851The difference stems from the fact that absolute denial of counsel runs up explicitly against the Sixth Amendment guarantee of the right “to have the Assistance of Counsel” while ineffective assistance of counsel is not specifically proscribed. Its less favored status derives in part from the impact of the due process provisions of the Fifth Amendment guaranteeing a fair trial, and “due process” which is inevitably a more flexible, less specific doctrine. See Strickland, 466 U.S. at 685, 104 S.Ct. at 2063. Denial of counsel is a “pure” Sixth Amendment violation.1 Ineffective assistance is, under Strickland, a Sixth Amendment violation, but a violation derived by reference to and under interpretative pressure of the Fifth Amendment.
The reason for that difference, and the difference in result depending on which is applicable, are not difficult to ascertain. Where there is absolute denial of counsel, the error which exists (the majority accepts that the complete barring of counsel during a court recess was error, Slip Op. at 4) is an error attributable to the trial judge. When ineffective assistance is concerned, the judge is not involved in the mistake, the error being that of counsel. Counsel’s decisions often are not effectively subject to criticism because of the wide-ranging consideration that he or she must be allowed to make “strategic” decisions. In any event, unlike the situation where there is outright denial of counsel, the judge remains completely unbiased and impartial in the case of ineffective assistance.
In the case of outright denial of counsel, however, he or she who must address the issue before it reaches us has every reason, however subconscious it may be, to find grounds for ruling “no prejudice” in order to sustain his or her action and to avoid the need for a new trial.2 His or her decision inevitably serves to shape the question as it reaches us on appeal. Such shaping, perhaps biased in a case of total denial such as we have here, is not so biased in the case of counsel always available to defendant but charged with prejudicial ineffective assistance.
It is unlikely that judges would consciously tailor their findings in order to save themselves from being reversed on appeal. We may assume that judges, despite some unjustified generalized suspicions to the contrary, are honorable men and women and would not take a step consciously in derogation of the defendant’s rights in order to spare themselves reversal on appeal.
However, a person, on becoming a judge, does not become devoid of human reactions and motivations and the possibility of subconscious motivation cannot be discounted or ignored. It is a bad rule of law which subjects a judge to the temptation. That is perhaps why the rule that denial of counsel for any length of time whenever it could be *852significant to the defense will result in a new trial. Here the deprivation of any counsel “could” be prejudicial, and requiring greater proof would, for reasons convincingly alluded to by Chief Judge Winter, be improper as forcing abrogation of the attorney-client privilege.
It is, indeed, surprising that the majority, in light of noisy criticism of the courts for not adhering strictly to the language of the Framers, should proceed so blithely, and on examination with little authority, to ignore the guarantee of assistance of counsel spelled out in the Sixth Amendment. There is simply no satisfactory way to insure that complete denial of counsel was not prejudicial when access to counsel was absolutely forbidden during trial, even if the time involved was but 15 minutes. The Sixth Amendment guarantees “the right to the effective assistance of counsel.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2063 (emphasis supplied). Deprivations of counsel render assistance ineffective, for assistance simply does not exist, and therefore violation of the Sixth Amendment is clear.
To approach the question on a “strict construction” basis, we would have first to recognize that the applicable constitutional language is the Sixth Amendment guarantee of “assistance of counsel.” The next thing to recognize is agreed to by the majority, namely, that there was an error in the denial of that guarantee. The person here involved for the crucial 15 minutes had no assistance of counsel. That should be the end of things, unless one wishes to depart from strict construction by adding that the Supreme Court has gone beyond the language of the Framers in the Sixth Amendment by expanding it to read: “effective assistance of counsel at a crucial point in the proceeding.’’ There can be no doubt that, in this case a crucial point in the proceeding was involved. The defendant had just completed his direct examination and was going into cross-examination in a case where he was on trial for his life, the state having sought the death penalty.
Consequently, we have to concentrate at most on the implication of the word “effective.” The right guaranteed by the Sixth Amendment is the right to the effective assistance of counsel. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063 (citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970)).3
It seems inescapable that a slight imprecision would not affect the outcome in the matter before the court, but when the court refers in its opinion to some other case, there might be some trivial inexactness in use of words. The question in McMann was whether counsel had incompetently advised criminal defendants. Effective assistance of counsel might be construed, as a linguistic matter, to mean only help that led to a verdict or other finding of not guilty, that being the only truly effective assistance which a defendant is likely to desire. With a little more precision the Supreme Court would have said, making use of the usually scorned double negative, “the right to the not ineffective assistance of counsel.”
Once we have come so far we understand the rationale behind Strickland and Cronic. In those cases, assistance of counsel was always provided. If counsel did something that was below professional standards, it was not ineffective simply because even the skill of Clarence Darrow would not have led to a different result. Counsel’s error would have been totally harmless. In the case which concerns us here, however, there was not any assistance of counsel, so whether it was effective or ineffective is not a question which arises or can arise. The total denial of assistance of counsel violates the Constitution and that should be the end of the matter.
On the majority’s approach, if the defendant was absolutely denied counsel and represented himself, according to later expert testimony, not in accordance with the cliche, as a fool, but apparently as well as any seasoned counsel could have, the defendant could not complain, for the denial *853would be, according to the approach of the majority, lacking in prejudice. There is an old saying: cessante ratione cessat ipsa lex. In this case, not only do reasons cease, but reason itself is absent.
PHILLIPS and SPROUSE, JJ. authorize me to say that they join in this opinion.
. The majority attempts to minimize the importance of the distinction, citing cases which have held that where there is a conflict between the unfettered assistance of counsel, on the one hand, and the need for the orderly and efficient procession of the case, on the other, the right to assistance of counsel must give way. The majority relies on Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983), where it was said:
Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel_ Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. See also Geders v. United States, 425 U.S. 80, 91, 92, 96 S.Ct. 1330, 1337, 47 L.Ed.2d 592 (1976); United States v. Vasquez, 732 F.2d 846 (11th Cir.1984); Pope v. State, 440 A.2d 719 (R.I.1982). However, those cases all focus on avoidance of interruption of a trial to permit the defendant's consultation with counsel. Here the interruption (recess) had already occurred for completely different and independent reasons and lasted for 15 minutes or so. The conference between counsel and client which was sought would not have led in any way to a delay or other disruption of the trial.
. If the judge, unmotivated consciously or unconsciously by such considerations, would have granted a new trial, we, as appellate judges, would not even confront the issue. Yet the subconscious desire to be thought right is a powerful and common force, and might quite possibly lead to a denial of a new trial when one should have been granted.
. For our purposes, it is not significant if the addition of the word "effective" marked a departure from "strict construction.” The Supreme Court has spoken and we must listen.