Appellant Baker petitioned below for a writ of habeas corpus1 challenging the validity of Florida's revocation procedures utilized to revoke his parole. The district court found that Baker had exhausted his state remedies, but, after an evidentiary hearing, entered an order dismissing the petition. We have determined that the procedures employed by Florida authorities to revoke appellant's parole contravened both the letter and spirit of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 484 (1972).2 We reverse and remand.

In 1971 appellant Baker was convicted of robbery in a Florida circuit court and was sentenced to 20 years. He was paroled in September, 1972 but on November 11, 1972 he was arrested and jailed in St. Lucie County, Florida on a charge of assault with intent to commit rape.3 The victim was one Ethel Arnold who was with a Harold Bell at the time of the alleged assault. Appellant allegedly fought with and attempted to restrain Bell while another man, codefendant Shaw, attempted to rape Ethel Arnold.

On November 15, 1972 Baker was notified in writing that the state parole commission would conduct a hearing on November 20 at the St. Lucie County jail 'in the matter of your arrest for a felony charge and your conduct on parole . . . to determine what action the Commission shall take thereon.' The written notice also informed Baker of his right to counsel and of his right to present witnesses in his behalf. The district court, after its evidentiary hearing, concluded that at the time this written notice was delivered Baker was afforded verbal notice of the nature of the charge against him and the procedures to be followed at the hearing.4 The district court did not find, however, that appellant was informed at this time of the evidence against him.

Commissioner Cross of the Florida parole commission arrived at the St. Lucie jail on November 21, 1972 for the hearing.5 The proceedings were tape recorded, but neither a court reporter nor a secretary was present. After the hearing was convened Commissioner Cross informed Baker that he had a choice with respect to the manner of proceeding. Baker could waive a hearing before a majority of the parole board, in which event Commissioner Cross would conduct the hearing alone and make a report which would be the basis of the decision whether to revoke his parole. If Baker chose this option, he would remain in the St. Lucie County jail pending the ultimate determination by the board majority. Alternatively, Baker could choose not to waive a hearing before a majority of the commission, in which event, the Commissioner made it quite clear,6 he would issue a warrant to have Baker sent to the state penitentiary pending the hearing before the commission and its rendition of a decision. Not surprisingly, Baker chose the first option.

At the revocation hearing Baker remonstrated that he desired the assistance of an attorney who had been retained for him, but Commissioner Cross refused to delay the hearing until counsel's arrival and made no attempt at that time to reach Baker's purported attorney personally or by telephone. The Commissioner premised this action on the fact that parole authorities had twice contacted the attorney named by Baker by telephone, on November 16 and 20, and the attorney had disavowed any knowledge of Baker or his case.7 In its order denying habeas relief, the district court concluded that Baker had not been denied the right to counsel at the revocation proceeding.8

At the revocation hearing a law enforcement officer testified about Baker's arrest and the lineup at which Bell had identified him as the assailant. After Baker had cross-examined the officer, Harold Bell was called to testify. The transcript reflects that the hearing tape ran out on side one during Bell's testimony and that the recording began again on side two 'with some testimony missing.' Substantially all of Bell's pertinent testimony on direct examination is missing; only Baker's cross-examination of him is contained in the transcript. The cross-examination tends to show that Bell and appellant scuffled while another man dragged Ethel Arnold down the beach. Baker made some effort to impeach Bell's account, but Commissioner Cross evidently was dissatisfied with Baker's questioning and terminated the cross-examination without asking Baker whether he had finished.9

At the conclusion of Bell's testimony, Ethel Arnold was called to the stand by the Commissioner. She testified only that on the night in question one or two black males attempted to rape her. Baker was not permitted to cross examine her.10 Baker then testified that he had been innocently proceeding along the beach when Bell accosted him, a fracas occurred, he and Bell proceeded down the beach the discovered Arnold and then Bell 'emptied his pistol' at Baker as Baker ran away. Subsequently, Baker claimed, he was arrested for traffic violations and was made to participate in an unfair lineup. He claimed he was charged with assault with intent to commit rape because he persisted in denying that anyone had been riding in the car with him. He also attempted to repudiate the law enforcement officer's testimony and identification. The revocation hearing ended with Commissioner Cross noting that Baker 'did not agree to proceed with the hearing without an attorney' and the transcript closes with certification by Mr. Cross that the transcription was a 'reasonably true and correct' reflection of the hearing. At the habeas hearing the court admitted the transcript into evidence, holding that its incompleteness went to its weight, not its admissibility.11

Before this court Baker premises his plea for relief on eight different allegations of error. We have concluded that several of his contentions are meritorious. We do not rest our decision on any one of his allegations, but upon the totality of the circumstances revealed by the record. It is our firm conclusion that Baker's right to procedural due process was violated in the revocation proceeding when it is measured by the standards set out in Morrissey.12

The record establishes that Baker was denied the assistance of counsel that he had in fact previously retained. In these circumstances such a denial constitutes a violation of procedural due process. The district court made a conscientious effort to resolve the right to counsel question in a fair manner, but that court committed error because of a failure to focus on the precise issue presented here.

In Morrissey the Supreme Court specifically left open 'the question whether the parolee13 is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.'14 Subsequently, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the Court held that states were not constitutionally obligated to furnish appointed counsel in all revocation cases. The Gagnon Court laid down general guidelines to be utilized by the courts in determining whether counsel should be appointed,15 but reserved the question 'whether a probationer or parolee has a right to be represented at a revocation hearing by retained counsel in situations other than those where the State would be obliged to furnish counsel for an indigent.'16

Morrissey, but not Gagnon, was applicable to Baker's November, 1972 parole revocation.17 Nevertheless, the district court by dicta indicated that even had Gagnon applied to Baker's revocation, the proceedings were not violative of it. In light of appellant's clearly colorable claim of innocence, this conclusion is not supported by the record. Since Gagnon is prospective only, however, we do not rest our decision on its holding.

It is axiomatic that the question of what is mandated by due process requirements turns on the particular circumstances of the case and a balancing of the governmental and private interests involved. See, e.g., Wolff v. McDonnell, 418 U.S. at 560, 94 S.Ct. at 2976, 41 L. Ed. 2d at 943; Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600, 33 L. Ed. 2d at 484. This general principle clearly applies in the circumstances revealed by the record before us where the specific issue is whether a person whose liberty is at stake is entitled to the assistance of previously retained counsel when considered with other pertinent factors related to the hearing afforded Baker. E.g., Sarzen v. Gaughan, 489 F.2d 1076, 1083 (1st Cir. 1973); Ganz v. Bensinger, 480 F.2d 88, 89 (7th Cir. 1973).

In this case we are not presented with the question whether retained counsel is a due process right in every revocation proceeding.18 Rather, we are faced with a situation where a parolee presented both a colorable claim that he had not committed the offense upon which the revocation proceeding was based and a reasonable, bona fide claim that he had previously retained counsel whose presence he desired. In such circumstances the parolee's interest in retaining his conditional liberty far outweighs the state's interests in a speedy determination, economy and a nonadversary hearing. Since Baker had retained his own counsel, the state treasury was not affected. The hearing was adversarial in nature from the outset. In our judgment the chief valid state interest, a speedy determination of the revocation issue, must yield to other pertinent considerations.

The state contends that appellant effectively waived his right to retained counsel,19 but the record contradicts this contention. Commissioner Cross unequivocally stated at the conclusion of the hearing that Baker did not agree to proceed without his attorney. Nor were the actions of Baker and the parole officials sufficient to establish an implied waiver of the assistance of retained counsel. Florida officials contacted the attorney the day before the hearing, but not on the day of the hearing. Baker was not permitted to contact the attorney on the day of the hearing. Due process required greater efforts on the part of the parole officials to determine whether in fact Baker had retained counsel. Since the state was at least partially at fault in denying Baker the services of his counsel, the standard for establishing a knowing and intelligent waiver of that right is extremely high.20 That standard has not been met here and we have concluded that Baker did not waive his due process right to the presence of previously retained counsel as earlier indicated.

Baker also asserts that he was denied due process in that he was not permitted to cross-examine Ethel Arnold. We find this argument meritorious and reject the contentions of the state that (1) Arnold's testimony did not incriminate Baker, rendering the denial of cross-examination harmless, and (2) Cross' subsequent statement that Arnold's emotional state justified the disallowance was a satisfactory finding under Morrissey.

Contending that the error, if any, in denying cross-examination was harmless, the state asserts that Arnold's testimony was unnecessary to Baker's revocation because Bell's testimony incriminated Baker.21 We disagree. Arnold was the victim of the alleged assault, which was the basis of the revocation. Bell's testimony deserved consideration, but Arnold's testimony was critical on the issue of the alleged assault with intent to rape. Dur process required that Baker be permitted to cross-examine the alleged victim of the assault.

The state's position that Morrissey was complied with in that at the habeas hearing Commissioner Cross testified that cross-examination of Arnold was disallowed because of her 'very hysterical state of mind' is equally devoid of merit. The Morrissey exception to the right of confrontation and cross-examination applies to cases where 'the hearing officer specifically finds good cause for not allowing confrontation.'22 In order to come within the exception there must be an explicit, specific finding of such good cause, and the reasons should be stated in the record of the revocation hearing. Here we have an after-the-fact, potentially self-serving, conclusory statement concerning Ethel Arnold's emotional state. This 'subsequent finding' simply did not comport with the Morrissey exception.

Although Baker asserts several other arguments that may contain some merit,23 we deal only with two others. We have determined that the one hearing afforded Baker did not comply with the due process mandate of Morrissey.

The state strenuously contends that Morrissey requires both a preliminary and a final hearing only in the extremely limited circumstances where there is either a substantial time lag between the arrest and the eventual revocation or the parolee is arrested at a place distant from the state institution to which he may be returned. While the Court in Morrissey did emphasize these factors, 408 U.S. at 484, 92 S.Ct. at 2601, 33 L. Ed. 2d at 496, certainly that case's mandate is not limited to such narrow circumstances. See, e.g., Gagnon v. Scarpelli, supra (no substantial time leg).24

Here, Baker was arrested and incarcerated. The circumstances of his arrest and incarceration are substantially equivalent to an arrest at a point distant from the state institution to which he would be returned as stated in Morrissey. In substance Baker was denied a probable cause hearing in that Commissioner Cross presented him with a Hobson's choice. The Commissioner informed Baker that he was entitled to a probable cause hearing at St. Lucie County--but he also made it clear that such a hearing would be a mere formality because he was going to find probable cause.25 Moreover, Commissioner Cross wrote the admittedly inaccurate report upon which the whole commission relied in formally revoking the parole, and he was a member of that body. In view of the fact that the Commissioner had reached the conclusion that probable cause existed at the commencement of the hearing, the procedure followed here did not comply with Morrissey.26 Baker was never accorded any hearing before a 'neutral and detached' hearing body.27

In brief summary and conclusion, it is our opinion that the totality of circumstances surrounding Baker's parole revocation violated both the letter and spirit of Morrissey v. Brewer and his right to due process. See Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). For the above reasons, the district court's order dismissing Baker's habeas petition is reversed and the case is remanded with direction that the writ be granted if the state of Florida should fail or refuse, within a reasonable time, to conduct parole revocation proceedings not inconsistent with this opinion. See, e.g., Newman v. Wainwright, 464 F.2d 615 (5th Cir. 1972) (per curiam).

Reversed and remanded with directions.