dissenting in part, and concurring in part.
I agree that the defendant waived his right to counsel at sentencing, and I concur dubi-tante in the majority’s holding that the district court did not err in not ordering a competency examination.1 However, I respectfully dissent from my colleagues’ conclusion that the defendant “validly waived his right to testify.” Maj. Op. at 239. Indeed, the majority misstates the issue. The issue is not whether the defendant “validly waived” his right to testify. He did not waive it at all. Instead, he was deprived of the opportunity to testify after he and his attorney informed the court that he wanted to do so. Accordingly, the majority’s discussion of waiver is misplaced. Rather, the issue here is whether the district court violated a duty of inquiry under United States v. Pennycooke, 65 F.3d 9 (3d Cir.1995). Because I believe that the district court’s failure to inquire was a clear violation of the holding in Pennycooke, I must respectfully dissent.
I.
It is well settled that a criminal defendant has a constitutional right to testify in his or her own behalf. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The decision belongs to the defendant and may not be made by trial counsel, or the court. See, e.g., Brown v. Artuz, 124 F.3d 73, 77 (2d Cir.1997); Pennycooke, 65 F.3d at 10. Moreover, “[t]he wisdom or unwisdom of the defendant’s choice does not diminish his right to make it.” United States v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992) (quoting Wright v. Estelle, 572 F.2d 1071, 1079 (5th Cir.1978) (Godbold, J., dissenting)). Further, “the right to testify on one’s own behalf at a criminal trial ... is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock, 483 U.S. at 51, 107 S.Ct. 2704 (citing Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).
Leggett wanted to exercise that right. He told the trial judge so. His attorney told the judge so, though he also informed the court that he advised against it. The majority agrees that defense counsel’s opposition is irrelevant to our analysis. See Maj. Op. at 245-46 (“The right is personal and can be waived only by the defendant, not defense counsel”) (citing Pennycooke, 65 F.3d at 10). The trial court obviously thought Leggett was competent to participate in his own defense when he told the court he wanted to testify, and today we uphold that conclusion. Yet, to put it mildly, the trial judge was not particularly impressed with Leggett’s assertion of his right. The court first responded by urging Leggett to follow his lawyer’s advice. The majority has already commented upon the colloquy in which the trial court urged Leggett to take his lawyer’s advice, and mentioned the extent to which the judge attempted to get Leggett to follow that advice. See Maj. Op. at 248. My colleagues conclude that the court’s comments then, and at a subsequent side bar “were highly inappropriate.” Maj. Op. at 248. Indeed they *252were. They also constituted a breach of the trial court’s obligation to allow Leggett to testify in his own behalf as is evidenced by the following exchange between defense counsel, the court, and the defendant:
[DEFENSE COUNSEL]: I’m not resting at this point, but I intend to rest. Now, Mr. Leggett has indicated to me that he wants to testify.... I have advised him against testifying.... I don’t think it’s in his best interest.... He does not want to take that advice, apparently, and he’s — at least up until now. I don’t know whether he’s changed his mind to insist on testifying.
[COURT]: Why don’t you talk to him over the lunch hour. And if he wants to take the stand, what is your view as to whether — I mean, aside from the right of it, do you think he has the right to take the stand?
[DEFENSE COUNSEL]: I think he does, Your Honor.
[COURT]: All right. Well, what are you asking us to do, if anything?
[DEFENSE COUNSEL]: Well, your Honor, if he takes — if he insists on taking the stand, I’m not sure what my role is at that point other than asking him his name, because I don’t — I think it’s self-defeating for this man to testify.
* * *
Now, as far as what — what my obligation is — I think that the Court ought to advise Mr. Leggett that, you know, your lawyer has told you that it’s not in your best interests to testify. However, you do have a right.... [I]f he says, yes, I wish to take the witness stand, I don’t have any questions prepared to ask him, other than what’s your name and what do you have to say to the jury on your behalf.
[COURT] [addressing the prosecutor]: Well, what is wrong with Mr. Gardner asking his witness — asking his client, if the client insists on taking — I don’t know whether Judge McClure is waiting out there or not.... We are late.... I throw this out for consideration. Mr. Gardner might properly ask him, well, what happened with respect to ... whatever the gentleman’s name was. What happened at that incident. Do you think there’s something wrong with that?
[PROSECUTOR]: At a minimum I think that should be asked, Judge.
[COURT]: All right. Do you see anything wrong with that?
[DEFENSE COUNSEL]: ... I don’t know what Mr. Leggett’s going to say. I’m at a loss. I never put a witness on the stand like Mr. Leggett before. And nothing that I’ve said or discussed with him over the past months has given me any indication of what he’s going to say when he gets on the witness stand, other than ideation and these hallucinations and delusion.
[COURT]: Of course, that may be very helpful to you.
[DEFENSE COUNSEL]: Again, like I say, I don’t know what the man’s going to say.
[COURT]: I’m perfectly willing to tell Mr. Leggett what I told him before, that you ought to listen to your'lawyer’s advise.[sic] ... If I were on trial, I would follow my lawyer’s advice, even though I thought it was wrong. And I do think that you should give that the greatest consideration.
What more do you think I ought to tell him, if anything?
[DEFENSE COUNSEL]: That his criminal record may come out if he takes the stand.
[COURT]: Well, he knows that.... What else?
[DEFENSE COUNSEL]: That he may-well, in my opinion, he’s going to — it’s going to be self-defeating and he’s going to destroy any possibility of an acquittal in this case.
[COURT]: Well, I think there’s question about that. He may be so far off base that it might win this case for him. So I don’t know what more you want me to say.
*253[DEFENSE COUNSEL]: That’s [sic] suffices, Your Honor.
[DEFENDANT]: I can’t talk?
[COURT]: What did you want to say?
[DEFENDANT]: I wanted to say this here. This lawyer ain’t been talking to me. If he would have been talking to me, he would know what I was going to say on the witness stand. That shows that this man is giving me ineffective assistance. He taking about he don’t know what I’m going to say on the stand.
* * *
[COURT]: Just a minute.... The law clerks and I have discussed Mr. Gardner’s performance in this case, and we think it is remarkably good, and' — so don’t tell me that he’s giving you ineffective assistance. He’s going [sic] an excellent job.
[DEFENDANT]: Well, what I’m—
[COURT]: Just a second. I have got appointment [sic] with another judge. You know it. I am seven minutes late. I am going to keep it, and this Court’s in recess.
App. at 148-151. The defendant responded “How did I know? You didn’t tell me you had no appointment.” Supp.App. at 125. A luncheon recess was then called. When court resumed a witness was called out of order, and the government proceeded with rebuttal. The court never inquired further of Leggett. The next day, immediately prior to the close of the case, the judge, prosecutor and defense counsel had the following discussion:
[PROSECUTOR]: The prosecution has no other rebuttal witness, Your Honor. We would move into evidence certain of the documents the Court has previously seen today, but we can do that out of the presence of the jury.
[COURT]: Okay. All right. May I see counsel, please.
(at sidebar)
I didn’t want to do this in open Court, but do you have — I’m not sure of your being entitled to any further evidence, but I wondered whether you had any.
[DEFENSE COUNSEL]: I haven’t any. [COURT]: All right. That’s fine. I didn’t want to say it because I thought he might jump up and say he wanted to testify.
App. at 163 (emphasis added).
The majority holds that this scenario does not fall within the “exceptional, narrowly defined circumstances” that require “a direct colloquy with a defendant ... to ensure that the defendant’s right to testify is protected.” Pennycooke, 65 F.3d at 12. If it doesn’t, then I am hard pressed to imagine a scenario that would.
II.
Pennycooke established that a trial judge usually has no such duty of inquiry. Our reasoning there was based upon the personal nature of the right to testify in one’s own behalf, the dangers of the trial court intruding into matters of strategy, and the danger that unintended consequences could result thus interfering with the exercise of a fundamental constitutional right rather than protecting it. Id. at 11-12. Nevertheless, as noted above, we recognized that “exceptional, narrowly defined circumstances” could require “judicial interjection through a direct colloquy to ensure that the defendant’s right to testify is protected.” Id. at 12. The majority recognizes this, but hastens to add: “we also took great pains to emphasize that it applies on the rarest of occasions.” Maj. Op. at 247. Indeed we did. However, that qualifier does not establish that this is not such an occasion.
My colleagues conclude that this is not such an occasion by characterizing the events that transpired during the trial as a “[m]ere disagreement between defendant and counsel with regard to strategic decisions.” They conclude that the “disagreement” “does not create a situation severe enough to compel a district court to investigate whether the defendant’s rights are being impinged.” Maj. Op. at 247. However, “every circuit that has *254considered this question has placed the defendant’s right to testify in the ‘personal rights’ category — i.e., waivable only by the defendant himself regardless of tactical considerations.” Artuz, 124 F.3d at 77.
Furthermore, even assuming this was a “mere disagreement” over strategy, it was still a violation of the holding in Pennycooke to only ask defense counsel if his client wanted to testify, and make absolutely no inquiry of the defendant. See Ortega v. O’Leary, 843 F.2d 258, 261 n. 2 (7th Cir.1988) (stating that it is error to question only the attorney about a defendant’s desire to testify where defendant interrupts a trial to express a desire to do so). Not only did the trial court address its inquiry only to counsel, it did so in a manner that prevented the defendant from responding, or objecting to his attorney’s response. In fact, the defendant did not even know that the trial court had asked the question of his attorney. It is true that Leggett did not request to testify following the sidebar when his attorney informed the court that he had no additional evidence to present. It is also irrelevant. How could he make such a request? Leggett could not very well have disrupted the proceedings by standing in open court and speaking directly to the judge without being asked anything. That was the choice that the judge’s side bar left him. This jury was about to determine his fate. Surely, Leggett’s failure to jump to his feet in front of the jury and insist that he be allowed to speak can not equate with a waiver of the right he had asserted just the preceding day. Ironically, Leggett may have done exactly that (jump to his feet and assert his right to testify as the judge feared) had he known what was going on. The judge realized that. He called defense counsel to sidebar to prevent it. Thus, the majority places far too much importance on Leggett’s failure to speak out in front of the jury. That silence establishes nothing more than the success of the court’s efforts to silence Leggett and prevent him from “jump[ing] up and say[ing] he wanted to testify”.
The majority attempts to minimize the trial judge’s attempt to keep Leggett from jumping up and asserting his right to testify as follows:
The bare facts of the matter are these: (1) the day before the defense rested its case, Leggett and his attorney disagreed about Leggett’s taking the stand; (2) one day later, at the close of evidence, Leggett’s attorney indicated that he had no further evidence to present — which implicitly meant that Leggett would not testify; and (3) Leggett did not then and does not now maintain that his attorney acted against his wishes. Based on these facts, the district court received no indication that Leg-gett was coerced by his attorney to remain silent. The district court could only have assumed that, in the 24-hour period leading to the close of evidence, Gardner had convinced Leggett that testifying was not in his best interests.
Maj. Op. at 248-49 (citing Lambrix v. Singletary, 72 F.3d 1500, 1508 (11th Cir.1996) (“Without evidence that [the defendant] was subject to continued coercion, we cannot assume that [the defendant’s] apparent acquiescence to a trial strategy in which he did not testify was anything but voluntary.”), aff'd, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)). Although this explanation is based on the record, the majority’s conclusion as to what the district court assumed is rank speculation, not “bare facts.” Moreover, that conjecture is contradicted by the trial judge’s own statements at side bar. If the judge “could only have assumed that' ... Gardner had convinced Leggett that testifying was not in his best interest” I am at a loss to understand the judge’s own explanation that he was speaking to Gardner at sidebar so that Leggett would not “jump up and say he wanted to testify.”
Nothing that had transpired during the trial would have caused the trial judge to conclude that Leggett and his attorney had finally found a way to communicate on the eve of the close of the trial. Rather, all that had gone before, including the statements of Leggett, and his attorney, suggested Leggett continued to insist on taking the stand against advice of counsel even though the judge had attempted to cajole him into following his attorney’s advice. Moreover, even if the judge had somehow reached the conclusion that during the preceding 24 hours, *255defense counsel and Leggett experienced an epiphany that had brought about a renaissance of communication between them, the trial court still had a duty of inquiry under Pennycooke to ascertain whether Leggett (and not his counsel) had made that decision, or whether counsel was failing to call Leg-gett against Leggett’s wishes based upon a dispute over strategy.2 Defense counsel candidly conceded that he was “at a loss” and that he “had never put a witness on the stand like Mr. Leggett before.” Moreover, the majority’s willingness to find a waiver from defendant’s failure to respond following the sidebar would be troubling even if waiver were the issue here. “A reviewing court must ‘indulge every presumption against waiver of fundamental constitutional rights.’ ” Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir.1988) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).
The majority cites Lambrix v. Singletary to support its supposition that the trial judge “could only” have assumed that Leggett and his attorney had resolved their differences the night before. There, the defendant was tried before a jury on charges of murder. The jury deadlocked. Lambrix was retried and received the death penalty following conviction. On appeal he raised several issues including whether he was entitled to the benefit of the holding in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), that had been decided following his conviction. See Teague v. Lane, 489 U.S. 288, 294, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). He also argued that his trial attorney rendered ineffective assistance by coercing him into not taking the witness stand. The Court of Appeals for the Eleventh Circuit affirmed the conviction. The court held that the defendant’s claim that he had improperly been coerced into not testifying was without merit because the only supporting evidence related solely to his first trial. Since the remedy would have been a new trial, the court reasoned that the defendant could not prevail as he had already received a new trial based upon the first jury not reaching a verdict. The court also held that there was “simply no evidence in the record that Lambrix was coerced not to testify in his second trial,” despite his claim that the coercion lingered. See Lambrix, 72 F.3d at 1508. The Supreme Court affirmed, but only discussed the issues arising under Teague. The Court did not address Lambrix’s assertion that his right to testify in his own behalf had been abridged.
III.
I am, of course, mindful that the trial judge here was trying to maintain order during this trial, and that Mr. Leggett was no doubt a rather difficult defendant. I am also mindful that Leggett’s contumacious proclivities are irrelevant. “[A] contentious defendant has no fewer rights than a sympathetic one.” Ortega, 843 F.2d at 261. Thus, I can only conclude that my colleagues’ decision today will be yet another example of the old adage that “hard cases make bad law.” The majority decision will also go a long way toward eroding the holding in Pennycooke, as it will serve as an example of a situation that does not create a duty of inquiry despite the “exceptional, narrowly defined circumstances” here. That conclusion cannot be supported on this record. Accordingly, I must respectfully dissent from Part IIB of the majority opinion.
. I define my concurrence in that issue as "dubi-lanle” to signify that I have reservations about that decision. See Salvation Army v. Dept. of Community Affairs, 919 F.2d 183, 202 n. 1. (3d Cir. 1990).
. Defense counsel's familiarity with the personal nature of the right to testify was such that the trial court should have been even more concerned about who was making the decision. When initially asked if he thought his client had the right to testify, defense counsel responded: "Well, Your Honor, as I said, I’ve talked to lawyers that I respect and do a lot of criminal law about this issue, last week and also yesterday. And they both said that they believe that Mr. Leggett has the right to — constitutional right to testify." App. at 148A.