(dissenting):
While one arm of the government prosecuted appellant for robbery inside the courtroom, another governmental arm placed under arrest, his sole witness outside the very same courtroom just as he was preparing to call her to the stand to support by testimony his denial of the rob*817bery charge made against him by the complainant.
The arrest of the only defense witness was effected by the detective assigned to the case without the knowledge either of the Assistant United States Attorney in charge of its prosecution or the judge presiding over its trial then in progress. The act for which the defense witness Williams was arrested consisted of threatening words allegedly uttered by her to the complainant while they waited outside the courtroom where the trial was taking place. The strength of the case against Williams for “threats” may be inferred from the facts that (1) the government moved to dismiss the charge 11 days later and (2) the prosecutor’s own evaluation in open court (Tr. I at 6-7) of what he understood had happened outside the courtroom, vis., “[T]hey weren’t threats to Mrs. Chambers [complainant] and to him [a gentleman who accompanied her to the trial], I didn’t pursue it any further with them.”
The impact of the arrest on appellant’s case was significant: his only witness, Williams, who was prepared to testify she had been with him at some place other than the scene of the robbery, determined upon conferring with her own attorney after arrest to invoke the Fifth Amendment if she was called to testify for appellant. Appellant’s attorney, acutely aware of the narrow issue of credibility posed for the jury’s resolution by complainant’s assertion1 and his client’s denial of the robbery, decided as a matt.er of tactics not to have the witness invoke “the Fifth” before the jury. The jury found appellant guilty as charged.
To begin with, there can be no dispute that the testimony of Williams was crucial to appellant’s defense and that he had a constitutional right to present his defense through the testimony of all his witnesses. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). So, too, the act for which Williams was arrested, vis., threats uttered to the government’s witness outside the courtroom while the trial was in progress, was subject to the court’s contempt power and susceptible to instantaneous remedial action by the judge presiding over the trial. Renfroe v. State, 104 Ga.App. 362, 364-365, 121 S.E.2d 811, 813-814 (1961); State v. Cooper, 64 N.M. 18, 322 P.2d 713 (1958); see also 52 A.L.R.2d 1297 (1957).
I doubt that even the majority would disagree that the proper course to have followed here would have been for the detective in charge of the case to have immediately informed the Assistant United States Attorney inside the courtroom of what had occurred outside the courtroom, for the prosecutor then to have fully reported to the trial judge on the record in open court, and, finally, for the court to have dealt sternly with the witness Williams.2 Given the present unsatisfactory physical conditions of many of our courtrooms leading inevitably to co-mingling of witnesses from both sides in the hallways and waiting rooms, the potential for undue interference with witnesses is substantial and must be met with firm and immediate action on the part of the trial court. However, here, the court, in those presence almost literally the contemptuous conduct occurred, was not informed that a *818key witness essential to the defense was being arrested for words uttered to another witness in the hallway. The impact of the witness’ subsequent removal from the case has been noted above.
The majority’s conclusion to uphold the action taken and affirm the conviction is disarmingly simple. “It was not the government,” it says (op. at 7), “but the witness who caused the claim of privilege.” Tt goes on to say (op. at 6), “It must be remembered that the primary and proximate event leading to the witness’s claim of the self-incrimination privilege was her own illegal act.” With all deference this analysis omits the critical fact that the arrest of Williams outside the courtroom by the detective without the knowledge of either judge or prosecutor was the event which triggered her claim. Certainly it may be speculated, as the majority appears to do, that even if Williams had not been arrested she might still have invoked the Fifth Amendment on the stand while testifying if the prosecutor cross-examined her about what she reportedly said to complainant outside the courtroom. However, in that situation, the government would not have been in the position, as it is here, of having arrested her, thereby eliminating her as a key defense witness. I believe we are required in this case to treat what was rather than what might have been when we are determining whether to uphold a prison sentence.
Since the witness Williams was essential to appellant’s defense at trial and since the police arrested her for conduct outside the courtroom that could have been dealt with by the trial judge had he known what had happened, I believe the government3 was responsible for the witness’ unavailability to appellant, see United States v. Smith, 156 U.S.App.D.C. 66, 69, 478 F.2d 976, 979 (1973), and he is therefore entitled to a new trial at which he has the opportunity to present his whole case without government interference.4
. She was the only eyewitness to his alleged crime.
. I view the responsibility of the trial court in the instant case to have been one of balancing appellant’s right to present unhindered his defense with the need to insure an orderly trial free from undue influence improperly exerted by any witness. A comparable situation is that of the unruly and obstreperous defendant at trial. The Supreme Court has recently held that the conduct of a defendant in the courtroom during his trial may be so disruptive as to justify the loss of his constitutional right to be present at the trial. Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). However, the Court emphasized that a judge should remove a defendant from his trial only as a last resort and that courts must indulge every reasonable presumption against the loss of constitutional rights. So, too, the arrest of a key defense witness while the trial is in progress for conduct almost in the shadow of the witness stand is to be effected only as a last resort after exhausting aE other reasonable alternatives, one of which was the exercise of the court’s power of contempt.
. I think it important to make clear that the prosecutor’s conduct in this case was beyond reproach. Early in the trial he alerted the court to possible tension between the witnesses of the two sides. After the arrest of Williams, he urged with commendable candor and vigor that the trial judge hold an immediate hearing on the record to inquire into exactly what had transpired between complainant and Williams —still not entirely clear. Unfortunately, the judge declined to go into what he characterized as a “collateral matter.”
Courts have understandably not been reluctant to criticize overreaching conduct on the part of prosecutors. Fair and responsible action on their part merits notice also.
. The detective in this case was unable to produce at trial the array of ten photographs from which complainant made an identification of appellant. He had failed to abide by the applicable Department Order requiring the keeping of exact groups of photos shown witnesses for subsequent presentation in court. See Metropolitan Police Department General Order 304.7, Part 1(G) (2) (Dec. 1, 1971). I would leave the determination of what action this “destruction-of-the-evidence” situation warranted to the trial court upon retrial. See United States v. Perry, 153 U.S.App.D.C. 89, 94-95, 100, 471 F.2d 1057, 1062-1063, 1068 (1972).