{dissenting). Even Larry Lee Banes is entitled to a fair trial.
To deny a person his right to the effective assistance of counsel and to compel him to incriminate himself is to deprive him of a fair trial.
As I read it, the whole point of Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977) is that unless defendant’s request for a lawyer is honored he has been denied the effective assistance of counsel in violation of the 6th Amendment and any incriminatory statement he makes thereafter is deemed to be coerced so as to violate his 5th Amendment rights, and hence may not be used against him.
The interpretation of Escobedo, supra, as enunciated in Miranda1 is not limited by Johnson2 to a more narrow retroactivity than the original holding itself. This case clearly falls within the spirit and framework of Escobedo.
The importance of Schmerber3 is that it differentiated between testimonial and nontestimonial evidence, holding that compulsion of certain kinds of the latter does not contravene the 5th Amendment while reiterating that compulsion of any of the former does.
The answers and other communications of the defendant here with the examining psychiatrists are patently testimonial and hence within the ambit of the 5th Amendment.
The most impressive aspect of the device used here, to me, is the complete lack of justification for *189it. If the prosecutor was concerned about the defendant’s capacity to stand trial he should have tested it under the statute. This leaves only the subsequently demonstrated desire to anticipate the defense 'of insanity.
This, indeed, may be laudable if lawful, but if the prosecution’s case is perfected in violation of a person’s rights, it vitiates the whole process of trial.
I would reverse and remand for a new trial.
Miranda v. United States (1906), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974).
Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882).
Schmerber v. California (1966), 384 US 757 (86 S Ct 1826, 16 L Ed 2d 908).