Kalodner, Ganey and Van Dusen, Circuit Judges. Ganey, Circuit Judge (dissenting).
VAN DUSEN, Circuit Judge.
This appeal is from the denial of appellants', Michael Reynolds (Michael) and Martin Reynolds (Martin), petitions for writs of habeas corpus (Civil Actions Nos. 244-65 and 255-65, respectively), sought pursuant to 28 U.S.C. § 2241(a), (c) (3) et seq. The District Court summarized the facts in its opinion of March 14, 1967, 287 F. Supp. 666:
"Petitioners were indicted by an Essex County Grand Jury on July 23, 1962 for the murder of Fred Garcia, the owner of a store located at 938 Bergen Street, Newark, New Jersey. Mr. Garcia died as a consequence of a bullet wound inflicted by Martin Reynolds  on April 1, 1962 while he and his brother, Michael Reynolds , were robbing the store. Petitioners were prosecuted by indictment pursuant to the provisions of N.J.S.A. 2A:113-2 whereby a person engaged in the commission of a felony during which the death of another occurs is guilty of murder in the first degree. It is further provided by N.J.S.A. 2A:113-4 that 'every person convicted of murder in the first degree, his aiders, abettors, counselors, or procurers shall suffer death unless the jury by its verdict, and as a part thereof, shall, after consideration of all of the evidence, recommend life imprisonment in which case this and no greater punishment shall be imposed.' (Emphasis supplied)
"A jury found each petitioner guilty of murder in the first degree without recommendation of life imprisonment. Thereupon each of petitioners was sentenced to death on November 10, 1962."*fn1
We agree that the District Court properly denied the petitions but point out our particular reasons for affirmance with respect to certain of the numerous contentions pressed both below and on this appeal.
As the District Court emphasized, the trial of appellants had the particular posture of being a trial solely on the issue of the possible recommendation of life imprisonment. Accordingly, the extent of the sentence, life imprisonment or the death penalty, was all the jury had to determine. This singular purpose of the trial is made abundantly clear in the statements of defense counsel quoted at length in the able opinion of the District Court.*fn2
As grounds for granting their writs of habeas corpus, the appellants argue vigorously that their death sentences are constitutionally infirm because their written and oral confessions given to the police were coerced and involuntary. Appellants contend they were neither advised of their rights nor allowed to have counsel prior to making oral confessions to the police, followed by signed written statements. This contention we find without merit because the state court record clearly shows that appellants' counsel deliberately, unequivocally, and reasonably waived any objection to such confessions and their admission into evidence. It was not feasible to have the confessions admitted solely with respect to the issue of appellants' admitted "guilt", yet with constitutional objections reserved with respect to the issue of the possible recommendation of life imprisonment. The waiver in this case was complete, with a specific statement of "no objection" from each of appellants' counsel with respect to the admissibility of each of the two written confessions (Exhibits S-20 and S-21). In addition, as the District Judge pointed out, counsel for the appellants also conceded in unequivocal terms that both confessions were voluntary.*fn3
By the above-mentioned reiterated explanations to the jury both that guilt was admitted and that the contents of Exhibits S-20 and S-21 were voluntarily given, counsel made an intelligent waiver of any constitutional objections to the confessions or their use as evidence that satisfies the standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938): "an intentional relinquishment or abandonment of a known right or privilege," as that standard has been explained and made applicable to habeas corpus determinations in Fay v. Noia, 372 U.S. 391, 438-439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); cf. Henry v. State of Mississippi, 379 U.S. 443, 451-452, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965). Particularly are we convinced that the extensive waiver constituted deliberate trial tactics in light of the opening remarks and summations of both defense counsel quoted in part above. The waiver was part of their case from the outset, obviously noticed by appellants even if they had not been consulted beforehand,*fn4 and part of a reasonable strategy in view of the many witnesses in the store at the time of the robbery and shooting whose testimony would probably have made such confessions superfluous had guilt been contested.*fn5 A reading of the record as a whole convinces us that the waiver was part of a plan to have appellants make as favorable an impression as possible upon the jury in order to secure their mercy. It would obviously help their cause with the jury the fewer factual problems they presented that concerned the shooting of a 69-year-old man and that demanded a jury assessment of their credibility or lack of it. As such, and in light of the clarity of counsel's position, the waiver in this case more than equals the effective waiver outlined in Henry v. State of Mississippi, supra, at 451, 85 S. Ct. 564. Since, as to certain doctors' statements discussed below, defense counsel made later objections to other evidence on the grounds of involuntariness, there is no doubt in this case that the right waived to object to S-20 and S-21 was "knowingly" waived.
The appellants' second main contention of constitutional infirmity concerns the testimony of two doctors who testified for the prosecution. The most vigorous arguments concern the testimony of Dr. Kesselman, a psychiatrist who examined both appellants for the state. Although, at the time of the trial, counsel objected only on the grounds of lack of proper foundation and improper rebuttal, appellants here contend that the details of the crime, as recounted in Dr. Kesselman's "history" of the appellants taken when they were examined, should not have been admitted by the court because the doctor failed to advise or warn appellants of their constitutional rights before they gave their version of the crime to him. It is further argued that, because the doctor's testimony revealed a different series of events surrounding the shots, and where each appellant was at those times, and because the testimony suggested that Martin deliberately shot Garcia and knew he had wounded him, the doctor's "history" contradicted the testimony of the appellants given earlier on the stand. In the appellants' case, their testimony maintained that Martin tried to shoot the knife from Garcia's hand to protect his brother and that after Michael ran out of the store, the gun discharged a second time while Martin wrestled with Garcia, who tried to block his escape from the store. Since Dr. Kesselman's version of the crime contradicted the appellants' testimony, the appellants contend that the inadmissible testimony of their "history" prejudiced their chance to get a "life" recommendation from the jury.*fn6
Our examination of the record and a comparison of the written statements given to the police with the version of the crime given to Dr. Kesselman and repeated by him on the stand,*fn7 convinces us "beyond a reasonable doubt" that appellants were not prejudiced in any way by the doctor's testimony of the appellants' description of the events in the store on April 1, 1962.*fn8 Dr. Kesselman's version of the appellants' story -- the number of shots, the position of the appellants at each shot, the knowledge of Martin that he hit Garcia, etc. -- do not vary from the version of the crime given to the police and allowed into evidence without objection, as outlined above. Any contradictions, whether prejudicial or not, result solely from the variations in the details given by the appellants in their testimony at the trial and a ...