Eldridge, J., dissenting:

In at least two respects, I do not agree with the majority opinion in this case. First, for the reasons set forth in Judge Cole's dissenting opinion, the representation by Johnson's lawyer was so inadequate that the defendant was deprived of his right to counsel under the Sixth Amendment to the United States Constitution and Art. 21 of the Maryland Declaration of Rights. Second, for the reasons set forth below, I disagree with the majority's holding that a criminal defendant, charged with first degree murder or other crime requiring specific intent, is not entitled to present evidence of his mental condition to show that necessary elements of the alleged offense were absent. The convictions should be reversed, and the case should be remanded for an entirely new trial.

I.

With regard to the admissibility of evidence concerning Johnson's mental condition, the factual background is as follows. After the insanity plea was withdrawn, the only defense which Johnson's attorney attempted to present in this capital case was that, in light of Johnson's mental condition, the elements of first degree murder and other specific intent crimes were absent. For this purpose, defense counsel offered the testimony of an expert witness, a psychologist employed by the State of Maryland. The experienced trial judge, consistent with prior Maryland law, held that the evidence was admissible for such purpose. The psychologist then testified about Johnson's mental condition, tests which he ran on Johnson, and his conclusions. In addition, portions of the psychologist's report were admitted. On appeal to this Court, neither side raised any issue concerning the general admissibility of this type of evidence. Instead, the appellant contended that the trial judge erred in not allowing all of the psychologist's report to be presented to the jury. The State, without disputing the admissibility of the expert testimony, argued that the trial court correctly excluded a portion of the report because it "was simply not germane to the issue of diminished capacity." (Appellee's brief, p. 23).

The majority opinion, instead of deciding the issue which was presented, briefed and argued by the parties, now holds that the entire expert testimony and the entire report were inadmissible. On this basis, the majority finds no reversible error in the exclusion of a portion of the psychologist's report. Of course, an appellate court will ordinarily affirm a judgment of the trial court on any ground adequately shown by the record, even though the ground was neither relied on by the trial court nor raised by the parties. Temoney v. State, 290 Md. 251, 261, 429 A.2d 1018 (1981), and cases there cited. Consequently, I do not question the propriety of this Court's dealing with the broad admissibility issue. However, I do question whether, under all of the circumstances, it is appropriate to resolve the issue against the defendant Johnson without first giving him an opportunity to brief and argue the matter.

II.

Turning to the merits of the majority's position, in my view the trial court correctly held that evidence of Johnson's mental condition was admissible for the purpose of showing the absence of certain elements of first degree murder and of the other specific intent crimes with which Johnson was charged. The majority's contrary holding represents an abrupt departure from prior Maryland law as well as from the prevailing view throughout the country. Moreover, it constitutes an unwarranted limitation upon a criminal defendant's constitutional right to present relevant evidence in his own defense.

The majority arrives at its holding by confusing two entirely distinct matters: (1) the existence of criminal conduct when a particular mental state is an element of the crime charged; (2) responsibility for criminal conduct. The confusion is enhanced by the majority's use of the terms "capacity" and "capability" interchangeably with "responsibility" and "culpability."

The defendant Johnson, inter alia, was charged with murder in the first degree under Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 407. In order to constitute first degree murder under § 407, the homicide must be a "wilful, deliberate and premeditated killing." Consequently, the State had the burden of proving the existence of these three elements. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Evans, 278 Md. 197, 362 A.2d 629 (1976). The mental condition of a defendant is obviously relevant to willfulness, deliberation and premeditation. These elements of murder have been defined by this Court on numerous occasions. In Faulcon v. State, 211 Md. 249, 257, 126 A.2d 858 (1956), Judge Collins stated for the Court:

"For a homicide to be `wilful' there must be a specific purpose and design to kill. To be `deliberate' there must be a full and conscious knowledge of the purpose to kill. To be `premeditated' the design to kill must have preceded the killing by an appreciable length of time; that is, time enough to be deliberate. To justify a conviction of murder in the first degree the jury or court, sitting without a jury, must find the actual intent, the fully formed purpose to kill, with enough time for deliberation and premeditation."

Accord: Gladden v. State, 273 Md. 383, 387-388, 330 A.2d 176 (1974), and cases there cited. "Specific purpose and design to kill" and "full and conscious knowledge of the purpose to kill" certainly involve a defendant's mental state. Evidence designed to show that a particular defendant was incapable of having the requisite mental state is nothing more or less than evidence designed to show that he did not commit the crime with which he was charged.

On the other hand, under Maryland law criminal responsibility due to mental condition is a wholly different matter. Unlike the common law concept of "not guilty by reason of insanity," the Maryland statutory scheme concerning criminal responsibility contemplates an initial determination that the defendant did commit the crime charged before there is an inquiry into his responsibility therefore. This was made clear recently in Langworthy v. State, 284 Md. 588, 399 A.2d 578 (1979), in which we held that a defendant, charged with rape, was entitled to take an appeal even though he successfully interposed the defense that he was insane when the alleged crime was committed. Judge Orth there stated for a unanimous Court (284 Md. at 598):

"The Court of Special Appeals dismissed Langworthy's appeal, holding that `a defendant, except under rare circumstances not here apposite, has no right to take an appeal from an acquittal.' Langworthy v. State, 39 Md. App. at 559-560. The fallacy in this reasoning is that Langworthy was found guilty of rape, and the dismissal of the appeal precluded appellate review of that conviction. As we have seen, the existing statutory scheme patently contemplates that there be first a determination of guilt or innocence under the general plea.

* * *

"In short, the clear legislative intent regarding the successful interposition of a plea of insanity is not that an accused is to be found not guilty of the criminal act it was proved he committed, but that he shall not be punished therefor. Rather than be punished, he may go free or, under prescribed circumstances, be provided treatment for his mental disorder. Thus, the Court of Special Appeals was not correct when it indicated that Langworthy was `not guilty' by reason of insanity nor was the trial judge correct when he spoke in those terms in indicating from the bench what he intended to do."

The Court went on to note the difference between the mens rea, which is an element of the crime, and the mental state required for an insanity defense ( id. at 599, n. 12):

"We believe the reference to `not guilty by reason of insanity' is a holdover from common law concepts and prior statutory provisions regarding insanity and the commission of crimes. In light of the clear provisions of § 25, we do not consider §§ 27 and 28 as authorizing or calling for a verdict of `not guilty by reason of insanity.'

"We do not subscribe to the theory of the Court of Special Appeals that a finding that a defendant was insane at the time of the commission of the crime means that `[t]here is no crime.' Langworthy v. State, 39 Md. App. 559, 561, 387 A.2d 634 (1978). Its reasoning was that the finding of insanity establishes a lack of the mens rea. Id. We do not think that this is so in light of the conditions prescribed for a finding of insanity, namely `as a result of mental disorder, [a defendant] lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.' Code (1957, 1972 Repl. Vol.) art. 59, § 25(a). Neither of these tests is necessarily at variance with a general intent to commit a crime. See Gardner v. State, 41 Md. App. 187, 396 A.2d 303 (1979)."

Until today, this Court has regularly distinguished evidence of a defendant's mental state designed to negate the existence of a crime from evidence of insanity designed to show that he was not responsible for a crime which was in fact committed. Whenever the existence of a particular mental state is an element of a criminal offense with which the defendant has been charged, the Court has consistently held that evidence of the defendant's mental capability is admissible to show the absence of that element, and thus the absence of criminal conduct.

For example, in Chisley v. State, 202 Md. 87, 107-109, 95 A.2d 577 (1953), involving a conviction of first degree murder and the imposition of a death sentence, evidence of the defendant's mental capability due to drunkenness was deemed properly admissible in order for the jury to determine the degree of homicide. The Court, in an opinion by Judge Hammond, quoted with approval Warren on Homicide, Vol. 1, § 61, that "[w]here murder is divided into degrees, the fact of drunkenness at the time of the homicide may be considered by the jury in determining the degree of murder." 202 Md. at 107. This Court went on to cite Hopt v. People, 104 U.S. 631, 26 L.Ed. 873 (1882), for the principle "that under a statute establishing different degrees of murder, the question of whether the accused was in such a condition of mind by reason of drunkenness, or otherwise to be capable of deliberation and premeditation, becomes a material subject of consideration by the jury." 202 Md. at 107, emphasis supplied. The Court in Chisley concluded this portion of the opinion by indicating that the jury was properly charged "as to the necessity for considering the effect of intoxication on the formation and existence of willfulness, deliberation and premeditation." Id. at 108.

Later, in Beall v. State, 203 Md. 380, 385, 101 A.2d 233 (1953), the Court reiterated that mental incapability due to drunkenness may be considered by the jury in determining the degree of murder. See also Avey v. State, 249 Md. 385, 388, 240 A.2d 107 (1968), where this Court expressly approved of the statement by the Court of Special Appeals that "where intoxication exists to a degree that it deprives the accused of his capacity to form a specific intent, he cannot be convicted of a crime requiring that intent. . . ."

In support of its holding that the expert psychological testimony was inadmissible in this case to show that the degree of homicide was less than first degree murder and to show the absence of the specific intent required under some of the other charges, the majority cites Armstead v. State, 227 Md. 73, 175 A.2d 24 (1961) and Allen v. State, 230 Md. 533, 188 A.2d 159 (1963). However, these cases do not support the majority position. Moreover, they clearly recognize the distinction which the majority today blurs, that is the distinction between evidence of mental incapacity, which is admissible to show lack of premeditation and deliberation, and the test for criminal responsibility. In Armstead v. State, supra, the defendant was convicted of first degree murder. At the trial, evidence was admitted showing that the defendant was "an epileptic who, occasionally, had suffered seizures of the grand mal type," 227 Md. at 74. On the other hand, a letter from the Chief Medical Officer of the Supreme Bench of Baltimore City, Dr. Manfred Guttmacher, was introduced into evidence, in which Dr. Guttmacher stated that the defendant "had too clear a memory of what transpired at the time of the offense for it to have occurred during an epileptic seizure." Id. at 75. The defendant in Armstead conceded that she was not insane under the McNaughten test for insanity then in effect and conceded that the evidence showed that she was guilty of second degree murder. Nevertheless, she argued that the trial court should have directed a verdict as to first degree murder on a diminished responsibility theory because she was an epileptic. Id. at 74-75. The defendant recognized that her argument required a modification in the test for insanity. She further recognized that her particular diminished responsibility theory, although close, was different from the principle that mental condition is relevant in determining capability to deliberate and premeditate. Id. at 75-76. Faced with this argument, the Court in Armstead refused to modify the McNaughten test for insanity and adopt the criminal responsibility theory propounded by the plaintiff. At the same time, the Court in Armstead did set forth "the well-recognized principle of law that when a statute establishes different degrees of murder and requires deliberate premeditation in order to constitute murder in the first degree (as ours does), the question of whether the accused is in such condition of mind as to be incapable of deliberate premeditation necessarily becomes a material subject of consideration. Hopt v. People, 104 U.S. 631; Chisley v. State, 202 Md. 87, 95 A.2d 577." 227 Md. at 76, emphasis supplied.

Allen v. State, supra, the second Maryland case relied on by the majority, is somewhat similar to Armstead. In Allen, the defendant was convicted in a nonjury trial of first degree murder. During the trial, he was allowed to introduce evidence showing that he was an epileptic. Also introduced in evidence was a medical report. The trial judge, as trier of fact, "found on the basis of the medical report that epilepsy played no primary role in the affair." 230 Md. at 534. The defendant in this Court argued that he was incapable of the premeditation necessary to sustain a charge of first degree murder. Ibid. This Court, treating the argument as having two prongs, first held that there was "no basis upon which to overturn his [the judge's] findings of fact." Ibid. In addition, the Court referred to Armstead as having rejected the "so-called diminished responsibility rule." Ibid.

The differences between the Armstead and Allen cases on the one hand, and the instant case on the other, are substantial. Unlike the majority's holding today, neither Armstead nor Allen suggested that the evidence of each defendant's abnormal mental condition was inadmissible to show the lack of willfulness, premeditation and deliberation. Instead, the inference from both cases is that the evidence was admissible. While those cases refused to change the test for criminal responsibility, they do not support the majority's holding regarding evidence showing incapability of having the mental state required for a first degree murder conviction. Instead, as previously mentioned, the Court in Armstead cited Chisley v. State, supra, 202 Md. at 107, for the rule that when a statute divides murder into degrees and requires deliberation and premeditation for first degree murder, "the question of whether the accused is in such condition of mind as to be incapable of deliberate premeditation necessarily becomes a material subject of consideration." 227 Md. at 76. The Armstead Court described this as a "well-recognized principle of law," ibid.

The majority purports to recognize that the State must prove every element of a crime, including mental elements such as specific intent, premeditation and deliberation. Nevertheless the majority asserts, without any reasoning, that "[t]here is a fundamental difference between evidence demonstrating that the defendant did not as a fact possess the requisite mental state, here premeditation and deliberation, as opposed to evidence establishing that the defendant was generally less capable than a normal person of forming a requisite mens rea." However, I fail to perceive this "fundamental difference" referred to by the majority. A particular individual's abnormal mental capability is a fact. It is part of his mental state or condition. A defendant having an epileptic seizure is "generally less capable than a normal person" of premeditation and deliberation, as indicated by this Court in Armstead v. State and Allen v. State.

The majority also asserts that "the governing principle of the criminal law [is] that all legally sane individuals are equally capable of forming and possessing the same types and degrees of intent." No Maryland authority is cited for this proposition. Furthermore, it directly conflicts with the principle set forth in Armstead, in Chisley v. State, and other cases, that a defendant's mental condition is material in determining whether he is " capable of deliberation and premeditation," 202 Md. at 107, emphasis supplied.

The error and confusion in the view adopted today by the majority, was very well described by Chief Justice Weintraub for the Supreme Court of New Jersey in State v. DiPaolo, 34 N.J. 279, 294-296, 168 A.2d 401, cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961):

"Next defendant contends that evidence of mental illness is competent upon the issue whether the crime was murder in the first degree or murder in the second degree.

* * *

"The difficulty seems to be that the topic is sometimes explored under the label of `partial responsibility' or `diminished responsibility' or perhaps confused with some other concept intended to be so described. Both of those characterizations are misleading since they tend to connote an `affirmative' defense designed to defeat a case the State has otherwise established and thus to suggest the intrusion of an amendment to the established basis for criminal accountability. Actually the question is simply whether there shall be excluded evidence which merely denies the existence of facts which the State must prove to establish that the murder was in the first degree.

* * *

"We here are concerned with the category described as a `willful, deliberate and premeditated killing.' . . . As settled by judicial construction, the first element is premeditation, which consists of the conception of the design or plan to kill. Next comes deliberation. The statutory word `deliberate' does not here mean `willful' or `intentional' as the word is frequently used in daily parlance. Rather it imports `deliberation' and requires a reconsideration of the design to kill, a weighing of the pros and cons with respect to it. Finally, the word `willful' signifies an intentional execution of the plan to kill which had been conceived and deliberated upon. . . .

"The three mental operations we have just described are matters of fact. The judiciary cannot bar evidence which rationally bears upon the factual inquiry the Legislature has ordered. The capacity of an individual to premeditate, to deliberate, or to will to execute a homicidal design, or any deficiency in that capacity, may bear upon the question whether he in fact did so act. Hence evidence of any defect, deficiency, trait, condition, or illness which rationally bears upon the question whether those mental operations did in fact occur must be accepted.

* * *

"It has long been settled that voluntary intoxication or the voluntary use of drugs may be shown for the jury's consideration with respect to whether a defendant did in fact premeditate, deliberate and willfully kill.

* * *

"Surely if voluntary intoxication or use of drugs is evidential with respect to the degree of murder, mental illness or deficiency should be accepted as a legally competent `cause.'"

See also, e.g., United States v. Brawner, 471 F.2d 969, 999 (D.C. Cir. 1972); Commonwealth v. Gould, 405 N.E.2d 927 (Mass. 1980); Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other than the Defense of Insanity, 26 Syracuse L. Rev. 1051, 1092, 1104 (1975).

As Justice Powell stated for the Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." By holding that one accused of first degree murder is no longer entitled to present relevant testimony of his mental condition for the purpose of negating the elements of first degree murder, the majority today imposes an unjustified limitation upon the right of a criminal defendant to present evidence in his own behalf.

Finally, the majority adopts this new rule in a case where the State is seeking the death penalty. The consequences of not permitting evidence of a defendant's mental condition in support of his contention that the homicide is something less than first degree murder, may be extreme in cases like this. Even in murder cases where the death penalty is not being sought, due process would seem to require that a defendant be permitted to introduce evidence of his mental condition as bearing upon the degree of murder. In a capital case, however, I would find it extremely difficult to conclude that the death penalty could be imposed consistent with due process requirements when the defendant is not allowed to introduce relevant evidence indicating the absence of the elements of first degree murder.

Judges Cole and Davidson have authorized me to state that they concur with the views expressed herein.

Cole, J., dissenting:

I agree with the majority that the sentence of death in this case must be vacated. I cannot agree, however, that the guilty verdict can stand. It is clear to me from the record that Johnson was denied his right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and under Article 21 of the Maryland Declaration of Rights; that the, Johnson, was deprived of his sole defense under circumstances where his trial counsel knew or should have known that unless Johnson was insane, there was no exculpatory explanation for his conduct. I would reverse and grant a new trial.

The law is clear that the constitutional guarantee of the assistance of counsel in a criminal prosecution means effective assistance, Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed.2d 61 (1945); McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), that lawyers in criminal courts are necessities, not luxuries, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and that the assistance of counsel is a requisite element of a fair trial, Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. Stovall v. Denno, 388 U.S. 293, 297-98, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

So inherently basic to the concept of fairness is the right to effective assistance of counsel that it originated as a corollary of the right of due process. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court indicated that the right to counsel was a fundamental right, protected in the state courts by virtue of the Fourteenth Amendment due process clause. The first commonly accepted standard the state and lower federal courts used to gauge effectiveness was a "farce and mockery of justice" test. See Daugherty v. Director, Patuxent Inst., 235 Md. 662, 202 A.2d 593 (1964); Diggs v. Welch, 148 F.2d 667 (U.S. App. D.C.), cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945). In order to prevail when asserting a Sixth Amendment claim, a defendant had to show that the ineffectiveness of counsel so prejudiced his cause that it rendered the trial fundamentally unfair.

The Sixth Amendment standard has undergone a rapid evolution in recent years, however, and the farce and mockery of justice standard has been almost universally rejected. See 10 Val. U.L. Rev. 509 (1976). The trend away from a due process analysis of the Sixth Amendment was given a compelling impetus by the Supreme Court in McMann v. Richardson, supra. In McMann a criminal defendant challenged the voluntariness of a guilty plea based on what the defendant alleged was the advice of incompetent counsel. In discussing competence, the Supreme Court held that a guilty plea is open to attack if a defendant can demonstrate that the advice given was not within the range of competence demanded of attorneys in criminal cases. Id. at 771. See also, Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 18 L.Ed.2d 1199 (1973). While not purporting to lay down a standard to be applied in all Sixth Amendment claims, the language of McMann has resulted in a change among most of the federal circuits and the majority of states regarding the method of analysis for judging effectiveness of counsel. See, e.g., United States v. Bosch, 584 F.2d 1113 (1st Cir. 1978); Moore v. United States, 432 F.2d 730 (3rd Cir. 1970); Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978); MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961); Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978); United States ex rel. Healey v. Cannon, 553 F.2d 1052 (7th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977); United States v. Easter, 539 F.2d 663 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979); People v. Frierson, 25 Cal.App.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587 (1979); State v. Anonymous, 34 Conn. Sup. 656, 384 A.2d 386 (1978); Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978). See also 17 Am. Crim. L. Rev. 233 (1979) (and cases cited therein).

The subject of effectiveness of counsel arose again in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In Cuyler, a criminal defendant alleged that his attorney did not provide effective assistance of counsel because of a conflict of interest arising out of the lawyer's simultaneous representation of codefendants. The Court, while carefully avoiding the application of the McMann test to a case of multiple representation, reiterated the language of McMann as it applied to the voluntariness of guilty pleas. The Court went on to say that "a lawyer forced to represent codefendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment." Cuyler v. Sullivan, supra, 446 U.S. at 345. The Court further held that once a defendant has established an actual conflict which would result in a Sixth Amendment violation he "need not demonstrate prejudice in order to obtain relief." Id. at 349-50.

These cases do not provide a bright line rule by which the courts of the nation could be governed, but they do provide general guidance. It appears that to establish a Sixth Amendment violation a defendant must demonstrate that the advice given was not within the range of competence demanded of attorneys in criminal cases. See Marzullo v. Maryland, supra. Once the defendant has established that his counsel's representation failed to meet this standard the defendant does not need to show prejudice; the prejudice to the defendant's defense will be conclusively presumed from the inadequacy of his representation.

Having gleaned from the Supreme Court a general Sixth Amendment test, the problem remains in determining what types of conduct by a defense attorney would render his representation ineffective. While Justice William H. Erickson of the Colorado Supreme Court has suggested that the American Bar Association Standards Relating to the Defense Function, (1971 Approved Draft), can and should be used as the basis for a uniform standard, 17 Am. Crim. L. Rev. 233 (1979), most courts have not tried to be so definitive. A brief review of a few cases involving facts analogous to the instant case, however, will point out that the representation in this case was undeniably ineffective.

In Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978), the defendant was accused and convicted of a senseless, brutal rape. The victim, a sixty-seven year old woman, had known the defendant for several years. The defendant made no attempt to conceal his identity during the crime and told his attorney he had no recollection of committing the offense. The defense attorney did not explore the possibility of an insanity defense, despite knowing that the defendant had been drinking and using heroin on the night in question. The Court of Appeals for the Fourth Circuit held that the defense attorney's representation was not within the range of competence demanded of attorneys in criminal cases and remanded the case for a determination of the defendant's mental competency at the time of the offense.

In People v. Frierson, supra, the defendant was convicted of murder. At the time of the offense the defendant was under the influence of PCP and diminished capacity was his only defense. The defense counsel called no witnesses to express an expert opinion on the effects of PCP nor did he have the defendant examined by a psychiatrist. The court determined, based on the unanimous agreement of several practicing attorneys, that effective representation in this type of case would require investigative and expert assistance regarding the use of PCP and its effect and the appointment of a psychiatrist to assist counsel in his defense. The court found that because these minimal steps were not taken by the defense counsel that he had deprived himself of the reasonable bases upon which to make an informed tactical trial decision. Giving up the diminished capacity defense, where that was the sole defense, was tantamount to withdrawal of any legal defense — "a complete abandonment of the interest of the accused." People v. Frierson, supra, 599 P.2d at 599.

In United States v. Easter, supra, the defense attorney did not challenge a warrantless residence search, which was the defendant's only defense. The court held that "[i]t is fundamental, we think, to afford a defendant a fair trial on a criminal charge, that his counsel assert that which may be his only defense." Id. at 666.

In Tillery v. United States, 419 A.2d 970 (D.C.App. 1980), the defense attorney failed to investigate and pursue an insanity defense and based the examination of his own psychiatric expert upon an obsolete insanity standard. The court held that where the defendant's trial counsel's actions "effectively blotted out a substantial defense, [it] thereby depriv[ed] him of his Sixth Amendment right to the effective assistance of counsel." Id. at 976.

In Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978), the entire prosecution consisted of the personal identification of the defendant by two victims. The defendant's sole defense was "that he was not guilty because he was not there," id. at 168, yet trial counsel failed to call two defense witnesses who would have corroborated the defendant's alibi. The court concluded that

[w]e cannot escape the conviction that this record requires us to hold that ineffectiveness of counsel deprived appellant of his only defense. Even more important, we cannot escape the conviction that it also deprived the jury of the opportunity to hear arguably vital evidence which should have been weighed in the balance against the identification testimony. American justice and the Sixth Amendment to the United States Constitution require no less. [ Id. at 168.]

The element these cases, and a multitude of other cases, have in common is that the defendant was deprived of the opportunity to assert a potentially meritorious defense because of the acts or omissions of his defense counsel. Where counsel's actions have resulted in the deprivation of a defense and there is no reasonable basis for the actions in trial tactics or strategy, appellate courts, both state and federal, are wont to find effective assistance of counsel.

Although the topic of effective assistance has drawn the attention of courts and commentators throughout the country in recent years, there is a paucity of authority emanating from this Court upon which to draw a constitutionally acceptable standard. Slater v. Warden, 241 Md. 668, 673, 217 A.2d 344 (1966), enunciated the test to be whether "under all the circumstances of the particular case . . . the petitioner [has] been afforded a genuine and effective representation." That test, still followed today, State v. Lloyd, 48 Md. App. 535, 429 A.2d 244 (1981), was based upon the Fourth Circuit cases of Turner v. State, 303 F. 507 (4th Cir. 1962) and its sequel Turner v. State, 318 F. 852 (4th Cir. 1963). The Fourth Circuit has since reviewed its position and changed its test to conform with the language of reasonable competence referred to in McMann v. Richardson, supra, 397 U.S. at 771. Marzullo v. Maryland, supra.

Although the Fourth Circuit has found cause to depart from its previous stand, it is apparent that our present test, when properly applied, will withstand constitutional scrutiny. While no longer parroting the language of federal decisions, the test focuses on the acts or omissions of defense counsel rather than the fairness of the proceedings as a whole. As such it is a Sixth Amendment right to counsel standard rather than a due process standard and should still be acceptable.

While we have not addressed a factual situation on all fours with the instant case, the Court's decisions, under the genuine and effective representation formula, tend to parallel similar cases referred to earlier in this opinion. In Evans v. Warden, 240 Md. 333, 214 A.2d 144 (1965), where the appellant claimed inadequate representation, this Court remarked that "[t]he specific contention of failure to call [alibi] witnesses, on the face of it, does present a claim on which relief may be granted." Id. at 335. The language of Evans was implicitly followed in Davis v. State, 285 Md. 19, 400 A.2d 406 (1979), where an appellant claimed that his trial counsel had failed to request that an alibi instruction be given to the jury and this Court reversed the Court of Special Appeals and remanded the case to the post conviction court for further inquiry. Id. at 37.

Both of these cases involved a situation where the defense attorney, by either act or omission, cut off a possible defense from the accused. Nothing can be more fundamental than that in a criminal prosecution the defendant is entitled to present his defense and that the jury is entitled to hear cogent evidence impacting directly on the guilt or innocence of the accused and Maryland precedent has tacitly so held.

Whenever reviewing the effectiveness of the assistance of counsel on direct appeal, a question arises whether it might not be more proper to allow the question to be heard in a post conviction hearing. Md. Code (1976, 1979 Cum. Supp.), Art. 27, § 645(a) and Md. Rule BK 40 allow a criminal defendant to collaterally attack his conviction based on, inter alia, effectiveness of representation. See State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971). Our decisions express the view that "appellate courts of this state have recognized that, ordinarily, counsel, whose professional ability and integrity are impugned, should be afforded an opportunity to be heard." Davis v. State, supra, 285 Md. at 36 (emphasis supplied).

Our decisions, however, have indicated a willingness, at least on some occasions, to address the subject on direct appeal. See Evans v. State, 236 Md. 532, 204 A.2d 554 (1964), and Fowler v. State, 237 Md. 508, 206 A.2d 802 (1965) (where this Court reviewed the allegation of inadequate representation on direct appeal). In any event, this case represents the extraordinary situation provided for in Davis. Here a defendant is confronted with the specter of public execution for his miscreant behavior. There is, moreover, ample and irrefutable evidence in the record to indicate that no possible trial tactic or strategy could justify the actions of Johnson's defense counsel.

This case is also extraordinary in the number of appellate options, direct and collateral, available to Johnson. If this Court affirms Johnson's conviction but remands for sentencing then a new sentencing proceeding will have to be conducted either before a new jury or the trial court. Johnson will still have the post conviction alternative, whatever the outcome of the sentencing proceeding. If he is denied relief by the post conviction court, he will then be able to appeal the sentence, if life imprisonment, to the Court of Special Appeals or, if death, to this Court. Once his state court alternatives are exhausted he will have available to him the possible relief of a habeas corpus petition in federal court. If the denial of the effectiveness of assistance of counsel is obvious from the record, then to unnecessarily add to this formidable appellate process would be an abhorrent squandering of judicial resources, not to mention the burden it places on the defendant who must endure the anxiety of each step of the procedure.

The second and perhaps more compelling reason to confront this issue now is that to delay it needlessly would be cruel and inhuman. As Justice Brennan noted in his concurring opinion in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. denied, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972), "the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. . . . The `fate of ever-increasing fear and distress' to which the expatriate is subjected can only exist to a greater degree for a person confined in prison awaiting death." Id. at 288-89. Subjecting Johnson, who has already been once sentenced to death, to the concomitant anxiety and psychological stress over the time it takes for him to avail himself of his full panoply of rights when the Court could shorten that time by reviewing an obvious violation of the right to counsel is an extra and unjustified burden heaped upon him.

Having examined the applicable legal standard, it is now the propitious point at which to discuss the facts of this case. A review of the facts leads me to the inescapable conclusion that Johnson's defense attorney's representation was constitutionally deficient in at least two respects: (1) calling Johnson to the witness stand to testify in his own defense, and (2) withdrawing the insanity plea prior to the commencement of the case before the jury. These two actions taken by defense counsel will be addressed out of chronological sequence for reasons which, to me, best demonstrate the trial counsel's ineffective representation.

Johnson's initial pleas were not guilty; not guilty by reason of insanity; and not guilty by reason of insanity at the time of the commission of the offense charged but sane now. As a result of his assertion of an insanity defense, Johnson was sent to Clifton T. Perkins Hospital Center for psychiatric evaluation. The report from Perkins indicated that a majority of the doctors who interviewed Johnson felt that he was competent to stand trial and responsible at the time of the offenses. However, one of the four reporting doctors, Dr. J. Clermont, said that he could not "arrive to a definite conclusion about diagnosis and responsibility as the definite was uncooperative with him during most of the interview." Mr. Kamm, a psychologist on the staff at Perkins who also interviewed Johnson, concluded that Johnson's "contact with reality is difficult to evaluate on account of his poor productivity resulting from extreme negativism." Dr. Clermont also reported that Johnson "admitted that he was still hearing voices," and that he was "functioning on a borderline level of intelligence."

Initially, Johnson was represented by counsel who moved for a postponement to get another doctor's opinion, moved to suppress a confession Johnson had given to the police, and represented Johnson at a suppression hearing regarding the confession. Johnson does not fault the adequacy of this representation, nor do I. After the suppression hearing Johnson retained new counsel who represented him for the remainder of the trial and at the sentencing proceeding.

At the jury selection stage of the trial the trial judge requested and received questions from Johnson's trial counsel to be addressed to the jurors on voir dire. Despite the fact that the State was seeking the death penalty there were no questions regarding the jurors' attitudes about the imposition of the death penalty in the list of questions submitted by defense counsel. At the voir dire examination, however, the judge did ask whether the jurors would be able to render an impartial verdict in a death penalty case.

Defense counsel moved for the appointment of another psychiatrist at State expense to assist the defense and for a rehearing on the motion to suppress the confession. Both motions were denied. Defense counsel then withdrew the pleas of not guilty by reason of insanity, ostensibly because the majority report from Perkins declared the defendant competent to stand trial and competent at the time of the offenses. He felt that, in defense counsel's words, "[w]e have no other evidence we could present" on the question of competency (emphasis supplied).

After this, defense counsel made his opening statements to the jury. He told them that Johnson would not deny his participation in this "senseless, totally senseless" offense. Rather, counsel directed the jury to focus its attention on the defendant's situation, his school history, intelligence, and family history. Counsel asked the jury to be aware of the drugs the defendant had been taking and their effects on him. Counsel also requested the jury to be mindful of the part Dwayne Mayers played in this offense and the effect he had on the defendant.

The State then began to present its case. The first two witnesses, friends of the victim's, testified regarding the victim's personality and characteristics, laying the foundation for the beginning of the chain of events that led the police to Johnson. The State elicited testimony from these witnesses that the victim was very close to her daughter and that the daughter had recently undergone major surgery. The defense objected to the introduction of the evidence of the daughter's medical condition but made no motion to strike or motion for mistrial after its introduction. No objection was made to the evidence of the victim's relationship with her daughter.

After calling several other witnesses, the State called Detective Jennifer Wehr to the stand. Detective Wehr testified regarding the conditions of the taking of Johnson's confession and read the contents of the statement for the court and the jury. The substance of the statement was that Johnson had been at his cousin's house (Dwayne Mayers') asleep when a friend of his, Amos Batts, came in and told Johnson that he and Mayers had gotten a car. Johnson went to the car, saw the victim in the front seat with Mayers, who was driving, then got in and the three men left with the victim. They drove to a field in Baltimore County where they stopped the car. Detective Wehr, reading Johnson's statement then testified:

I [Johnson] had sex with the lady first in the car, then Dwayne, then Amos, all in the car. . . . Then me and the girl and Amos got out of the car and . . . [m]e and the girl walked off. . . . had sex with her again outside. Then we walked off. She had her back turned. I shot once and it hit her in the back. Then again and again. One of them hit her in the head. Then when she fell to her knees I hit her in the front. I went back and got in the car and we drove off.

Detective Wehr also testified that when she asked Johnson if the victim resisted the sexual attacks his answer was "yeah." This was the State's last witness. Defense counsel made motions for judgments of acquittal which were denied.

The defense's first witness was Ernest Kamm, a psychologist from Perkins Hospital Center who had had the opportunity, as noted, to interview Johnson while he was at Perkins. The State objected to Mr. Kamm's testimony, as defense counsel had already withdrawn the plea of insanity. Defense counsel proffered to the judge that he was not seeking testimony regarding Johnson's mental competence but rather sought to mitigate the charges of first degree murder and other specific intent crimes. Mr. Kamm was then allowed to testify that Johnson functioned at a borderline intellectual level with an I.Q. of 72 and that he was a severely deprived individual with a hostile and negative orientation and a severe authority problem. Defense counsel sought to move Mr. Kamm's entire report into evidence, to which the State objected, and the objection was sustained. In argument before the bench, and out of the hearing of the jury, the State noted that there were "certain things, bizarre thinking" in the report that would pertain to sanity, not premeditation. At the end of Mr. Kamm's testimony the defense called Gordon Glazer. Mr. Glazer failed to respond and the judge recessed the trial until the next day.

On the second day of trial defense counsel called as his first witness the defendant. Counsel asked Johnson why he was living with his aunt and Johnson replied that he had just gotten out of jail for a "burglary charge" and was on probation for that offense. Johnson then related some background regarding his family history, school history, and his relationship with Dwayne Mayers. He testified that he had used a variety of drugs, including PCP. Defense counsel then focused his direct examination on the night before and the day of the offense. Johnson said that Mayers had asked him if he wanted to go out and make some money and Johnson, repeating that he had just gotten out of jail, declined. Johnson then related the events surrounding the offense, saying that while they were driving around with the victim they were smoking parsley flakes treated with PCP. Just before the victim was killed Johnson told the jury that Mayers told Johnson and Batts that they were going to have to kill the victim. An argument ensued in which Mayers insisted that Batts do the shooting. When Mayers became angry because Batts refused, Johnson said that he volunteered to do the killing. He said he walked the victim into the woods, fired one time, then kept shooting, saying his hand would not stop.

After the State's cross-examination the defense again sought to call Gordon Glazer. Mr. Glazer was, again, not there so the trial judge recessed for lunch. After lunch and on the record the judge related the following:

I think the record ought to reflect, and I'm not sure that it does at this stage, what has transpired with respect to the witness, Gordon Glazer. He had advised the Court that he had agreed to testify as an expert witness at the request of defense counsel to the effect of certain controlled dangerous substances on persons. Mr. Glazer is an employee of the Center dealing with the problem of abusive substances, and specifically is Head of the New Leaf Center. That center operates under the general supervision of Doctor Pat Hawkins.

Mr. Glazer was here yesterday and everybody apparently assumed, I know I did, that he was going to be back today. When he didn't show up today I sent out a search for him through the Sheriff's Office, when defense counsel informed the Court of their information that he was going to be back at 12:00 o'clock to his center here in Calvert County. Over lunch hour I received a call from Doctor Pat Hawkins who informed me that Mr. Glazer was leaving today on two weeks vacation in Alaska and was supposed to catch a plane to leave on the vacation at about 12:00 o'clock. It was then a little after 12:00 o'clock. She informed the Court that she was attempting to have the plane stopped or him stopped at the plane. I told her I didn't think that would be necessary. Mr. Glazer did try to stay around yesterday, although he was not here as late as the trial ran.

As soon as counsel returned they were informed about this and in that Doctor Spodak, an independent medical employee of the State of Maryland, was here and had substantially better credentials for testifying in this matter than did Mr. Glazer. Counsel were given the opportunity to interview — defense counsel were given the opportunity to interview Doctor Spodak in the Court's chambers without anybody else being present.

At the conclusion of that interview the Court was requested to state whether or not the Court would limit his cross-examination of Doctor Spodak, if defense counsel called him, and limited their questions simply to the general customary offense of controlled dangerous substance in question on a person. The Court said at that time that it would limit the State's cross-examination to specifically that area. However, it would not prevent the State from recalling Doctor Spodak in rebuttal and on direct examination inquiring of him if he had examined the defendant in this case and if he felt, within his medical, field of medical expertise, that he could express an opinion about what the effect of whatever chemical substances were involved on this defendant. At that point everybody knew that the State was holding Doctor Spodak as a rebuttal witness to the testimony which was expected to be elicited in the defendant's case, and the Court felt that we could not deprive the State of the right to use this rebuttal witness simply because he was now going to testify in a general way as to the effects. All of that having been sifted down and filtered through the various processes that go to make up trial tactics, the defense, as I understand it, has elected to close its case at this point. It is not to call Doctor Spodak.

Defense Counsel: That's correct, Your Honor.

* * *

Prosecutor: Yes, sir. And the other thing is for the record, the Court may have said this and I missed it, that the State will concede he knew about he was a witness although he wasn't officially summonsed for the case. We will state he knew he was a witness in the case, but there is no official summons. That's the State's position on this. Thank you Your Honor.

Unsuccessful in the attempt to obtain any testimony regarding the effects of PCP, the defense sought unavailingly to renew several of its motions and rested its case.

During closing arguments defense counsel emphasized the dominant influence Mayers had in Johnson's life. The gist of the argument was that Johnson lacked the premeditation required for first degree murder; that there was not enough evidence to support the charge of kidnapping; and that there was not enough evidence of force to sustain the charge of rape.

In light of this summary of the evidence, it seems to me that defense counsel's ineffectiveness is glaringly apparent and this Court should address the issue forthwith. It is apparent to me that defense counsel's theory of the case was that the defendant was guilty of the offenses charged, thus, rather than present a defense consistent with a plea of not guilty, his best course of action would be to persuade the jury that the offense Johnson was guilty of was second degree murder and not first degree. This is evident in counsel's opening and closing remarks to the jury, where he admitted the defendant's guilt, and the colloquy at the bench regarding the testimony of Mr. Kamm.

It seems obvious to me that in order to build a defense reducing the offense to second degree murder, defense counsel had to get around both prongs of the State's case for first degree murder. The first prong was the felony murder statute Md. Code (1976, 1981 Cum. Supp.), Art. 27, § 410 provides that a homicide committed during the course of certain enumerated crimes, including rape, robbery, and kidnapping, is murder in the first degree. The second prong is the standard of premeditated murder. Article 27, § 407 provides that "any kind of wilful, deliberate, premeditated killing shall be murder in the first degree."

Examining the State's case for first degree murder it is obvious that a defense based on a reduction to second degree murder was unsupportable. It is also apparent that while a second degree verdict could arguably (a tenuous argument at best) have been realizable without Johnson's testimony, such defense was totally untenable once Johnson took the stand.

To circumvent the application of the felony murder statute, Johnson's defense counsel had to raise a reasonable doubt in the minds of the jurors that Johnson was incapable of forming the specific intent needed to support the charges of rape, robbery, and kidnapping. Before Johnson testified, the defense could have offset the admissions in the confession with the testimony of Mr. Kamm regarding Johnson's low intelligence and the impression defense counsel had tried to create, through cross-examination of State witnesses, that Johnson was under the influence of drugs and alcohol when the statement was made. After Johnson took the stand, however, the jury was made aware that Johnson knew the night before the murder that Mayers was planning to steal a car; that they were looking to steal some money; that the victim had her head down and was crying when Johnson got in the car; that Johnson had an argument with Mayers before he got in the car about the presence of the victim; that Johnson had gotten out of jail just a few days before this offense occurred for a burglary conviction; that Johnson knew at this point that the victim was there against her will; that Johnson made a reasoned decision just after the murder to dispose of some of the victim's property because it was evidence. None of these facts was in evidence before Johnson took the stand. By calling Johnson to the witness stand to testify the defense attorney literally drove home the State's case and made a guilty verdict a foregone conclusion.

It is reasonable to expect that any reasonably competent defense attorney would have gone over a witness' testimony before calling that witness to the stand, particularly where the witness is the defendant. It is, therefore, reasonable to assume that defense counsel knew of Johnson's recent burglary conviction (especially since it first came out in response to a question on direct examination) and that he knew what Johnson's narration of events would reveal. It does not reasonably or even remotely follow that Johnson's testimony that he apparently knew that the car was stolen and that he was making rational decisions before, during, and after the offenses (arguing with Mayers before getting into the car, volunteering to shoot the victim when Batts and Mayers were arguing about who was going to pull the trigger, and disposing of evidence immediately after the murder to avoid detection, respectively) would in any way attenuate the State's case for premeditation. Quite obviously to the contrary, it filled in whatever gaps were left after Detective Wehr's reading of Johnson's confession. By calling Johnson to the stand defense counsel proved that Johnson knew what he was doing before he did it and intended whatever actions he took.

Whatever slender thread defense counsel was resting his case on snapped when counsel called Johnson to the stand. He could not have more effectively ensured a finding of guilty to murder in the first degree if he had been the prosecutor. By having Johnson testify and thereby virtually destroying whatever hope there was for a finding of second degree murder defense counsel blotted out the only defense he had available. It cannot be more obvious that this could not have been the trial strategy of a reasonably competent attorney and, on this basis alone, Johnson was deprived of the effective assistance of counsel.

Not only was Johnson deprived of the effective assistance of counsel before he took the witness stand, he was deprived of it in the incipient stages of the trial when defense counsel withdrew the insanity plea. Insanity was Johnson's only viable defense from the beginning of the trial.

Where the defendant's plea is not guilty by reason of insanity, one of the eventualities that may arise from the plea is that

[i]f the verdict on the general plea is guilty and the special verdict on the additional plea is that the accused was insane at the time of the commission of the offense, he has failed in what he sought under his general plea but attained what he sought by his additional plea, in that he shall not be held responsible for his criminal conduct. [ Langworthy v. State, 284 Md. 588, 593-94, 399 A.2d 578 (1979).]

The result is not an acquittal where the defendant was proved guilty but rather the outcome rests on the legislative determination that because of the defendant's mental incompetence he will not be punished for his act. Id. at 598.

It has further been established by this Court that defense counsel is not restricted to the testimony of psychiatrists, or any expert witnesses, to establish insanity. A lay witness may express an impression or conclusion that someone is normal or abnormal provided that he does not testify as to the ultimate legal question of whether the defendant was criminally responsible. State v. Conn, 286 Md. 406, 428, 408 A.2d 700 (1979). Whether or not such witnesses were available the record does not reveal since the insanity plea was withdrawn.

There was absolutely no reason for the withdrawal of the insanity plea in this case. The defense could not afford to hire its own psychiatrist to examine the defendant. However, the medical report from Perkins was divided as to whether Johnson was competent to stand trial. Three doctors said he was competent and one doctor said that he could not make the conclusion because of the defendant's poor cooperation. The report said that Johnson admitted hearing voices and that his contact with reality was difficult to evaluate. The author of that report, Dr. Clermont, was available to the defense at State expense and could have been called as a witness at trial.

Furthermore, defense counsel had Mr. Kamm, a psychologist at Perkins, available to testify on Johnson's behalf. The portion of Mr. Kamm's report that defense counsel was not able to get before the jury because he had withdrawn the insanity plea was to the effect that there were "some signs which point in the direction of bizarre thinking and a tenuous hold on reality," that Johnson had said that he had seen the devil and that he had seen God over water. On cross-examination, when asked if he had an opinion on whether Johnson knew right from wrong, Mr. Kamm said that he had no opinion, implying that there was an insufficient basis to draw any conclusions.

Aside from the potentially favorable expert opinion regarding the defendant's incompetence that was available to defense counsel, there was also an expert, Gordon Glazer, who had been contacted by defense counsel regarding the effects of the drug PCP. Johnson testified that PCP made him hallucinate, "like you might be standing somewhere and you just go out of your — ," that it made him forget things, and that he "could smoke about twenty days [jays?] or something like that." PCP is a powerful mind altering drug with potential long term side effects from continued use that an expert could have testified to. Defense counsel, however, did not seek to employ Mr. Glazer's testimony to this end. In fact, Mr. Glazer was not even summonsed to appear.

Under these circumstances the withdrawal of the insanity plea can in no way be justified as a reasonable trial tactic. It deprived the defendant of his only defense. Even if one were to assume that pursuit of a second degree verdict (which bears a possible sentence of thirty years), was more advantageous to Johnson than the insanity defense, there could have been no evidence adduced during the course of the attending testimony on Johnson's mental competence that would have prejudiced an argument for second degree. Rather, the evidence would have served to bolster the case for a second degree verdict. There is no excuse, therefore, for failing to pursue the insanity plea, thereby depriving the defendant of this defense. Wood v. Zahradnick, supra.

Counsel's failure to produce evidence of Johnson's mental competence also deprived the jury of the opportunity to hear arguably vital evidence which should have been weighed in the balance against the evidence of criminal agency. Wilson v. Cowan, supra. Indeed, in a case where the death penalty is being sought justice demands that the defendant have the opportunity to present what may be his only defense to the jury. Such a deprivation of a potentially meritorious defense with no reasonable basis in trial tactics is unquestionable proof of ineffective assistance and tantamount to a complete abandonment of the interest of the accused. People v. Frierson, supra.

There is one further reason that this Court should, on this record, strike out the verdict. The judicial system has been often, and sometimes stridently, accused of white-washing the problem of inadequate representation by members of the bar. Chief Justice Burger has commented that "we are more casual about qualifying the people we allow to act as advocates in the courtrooms than we are about licensing electricians." Burger, The Specialized Skill of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 42 Fordham L. Rev. 227, 230 (1973). Chief Judge Bazelon of the District of Columbia Circuit Court criticizes the system for going to great lengths to bury the problem of ineffective representation. "One of the major reasons that the problem of ineffective assistance has remained hidden is the appellate court's remarkable propensity to ignore the issue of ineffective assistance altogether and to paper over the cracks in the house that Gideon built." Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1, 21, n. 3 (1973). Lest we also fall subject to this criticism this Court should meet its responsibility head on. It is squarely presented by the record and resolvable by the evidence it contains.

Based, therefore, on the irrefutable facts in the record that Johnson was deprived of any semblance of a defense when defense counsel withdrew his insanity plea and when he called Johnson to the stand to testify, I would hold, in consonance with the numerous authorities cited earlier, that Johnson was denied his constitutional right to the effective assistance of counsel. I would reverse the judgment of the trial court and remand for a new trial.

Judges Eldridge and Davidson have authorized me to state that they concur in the views here expressed.