WATERMAN, Circuit Judge:
This is an appeal by the warden of a New York state prison from an order of Chief Judge Foley of the United States District Court for the Northern District of New York sustaining appellee’s writ of habeas corpus after a hearing at which the warden was represented by the office of the State Attorney General. Judge Foley’s careful opinion setting forth his findings and conclusions is reported at 252 F.Supp. 539 (1966).
Ori October 24, 1962, after a trial by jury in New York State Supreme Court, Kings County, Judge Samuel S. Leibowitz presiding, the appellee, William Davis, was convicted of having committed the crimes of robbery in the first degree, grand larceny in the first degree, and assault in the second degree. At no time after the impaneling of the jury did Davis have the assistance of counsel. On February 13, 1963, he was sentenced as a second offender to serve a term of from 30 to 60 years. The conviction was unanimously affirmed by the Appellate Division, People v. Davis, 21 A.D.2d 681, 250 N.Y.S.2d 375 (1964), and leave to appeal to the New York Court of Appeals was denied by Judge Fuld of that court on July 13, 1964.
On January 6, 1965 Davis’s petition to Judge Foley for the issuance of a writ of habeas corpus was filed in the court below. Davis alleged that his constitutional right to have the assistance of counsel had been denied him at his trial. The petition was supported by affidavits of Attorney Ethel M. W. Mott, who had been appellee’s retained counsel when the case was called and who continued to represent him during the remainder of that day and until ten jurors had been chosen; Attorney Thomas Brett of the New York Legal Aid Society; and Edward Davis, appellee’s brother. On April 12, 1965 the State took the depositions of Judge Leibowitz and Assistant District Attorney Selzer, the prosecutor at Davis’s trial. On June 21, 1965 the district judge held his hearing on the petition. Edward Davis testified on behalf of his brother and the State introduced the depositions of the judge and the prosecutor on behalf of the warden. The district judge, after a most conscientious consideration of the state trial record and the evidence before him found that the petitioner had indeed been denied a fair opportunity to have the assistance of counsel at the state court trial and that petitioner was there deprived of the protection of the Sixth and Fourteenth Amendments. Accordingly the judge is[614]*614sued the order from which the warden appeals.
In his opinion Judge Foley has set forth the conspicuous occurrences that caused him to sustain the writ. In summary, however, the events before and during trial which relate to the petitioner’s claim that he was denied a fair opportunity to have the assistance of counsel in the presentation of his defense are also set forth herein.
The events out of which the prosecution arose occurred early in the morning of April 15, 1962, and Davis was arrested later that day. The Kings County Grand Jury indicted him on May 17,1962. On or about May 18, 1962 Mrs. Ethel M. W. Mott was retained by the defendant to represent him. The case was assigned to Judge Rinaldi on May 18th. On May 23rd it was placed on the regular calendar and marked for trial. On June 11th the case was set over at the request of the defendant. On July 31st it was marked off because a prosecution witness was on vacation. It was on the calendar on September 10th before Judge McDonald and was again set over at defendant’s request. It was placed on the ready calendar on October 9th and assigned to Judge Leibowitz. On October 16th Davis and his retained counsel Mrs. Mott appeared before Judge Leibowitz who indicated to them that he wished to begin the trial of the case that day. Mrs. Mott requested an adjournment. She claimed she had not been notified of the trial date, that her witnesses were not available, and that she wished a copy of the indictment and of the complaint in the Magistrate’s Court. Judge Leibowitz ordered that a jury be selected that afternoon, the taking of evidence to commence the next morning.
This pronouncement was followed by a conference in chambers at Mrs. Mott’s request. Davis, Mrs. Mott, and Judge Leibowitz were present. After appropriate warnings the judge told Davis that the court would accept a guilty plea to robbery in the third degree. The defendant rejected this suggestion, refusing to plead guilty to any crime more serious' than a misdemeanor.
After this conference the voir dire examination of the jury began. During this examination, which is not recorded under New York practice except where an objection is made, Mrs. Mott claims in her affidavit that she was “subjected to continual harassment and abuse by Judge Leibowitz in the presence of the jury and of my client.” After she had exercised all of the defendant’s peremptory challenges, Mrs. Mott challenged a juror for cause on the ground that the juror’s daughter was an assistant district attorney. This challenge was disallowed and the trial was recessed until the next day.
When court reconvened in the morning of October 17th Mrs. Mott was allowed an extra peremptory challenge to remove the juror she had objected to for cause; the prosecution was not allowed a corresponding additional challenge. After the court excused another juror Mrs. Mott announced that Davis’s family had requested her to withdraw from the case. Davis supported this, saying that he was discharging Mrs. Mott. Judge Leibowitz refused to permit a withdrawal, ordered Mrs. Mott to sit down by the defendant, and warned Davis that if he discharged Mrs. Mott he would have to proceed without counsel.1 Despite this [615]*615refusal by the court to permit her to withdraw or to recognize that she had been discharged, Mrs. Mott continued in her efforts. Judge Leibowitz did not hesitate to express his opinion of these tactics:
Now I find this morning this new gimmick to wreck this trial, that the defendant wants Mrs. Mott discharged, and he is firing her. This is another attempt to wreck the trial, to have the matter go over- — to give the defendant an opportunity to get another lawyer so that the case would appear in another part, because the parts change here every month, and this lawyer is fully familiar with the practice.
If I permit this to happen, then it would be a mockery, and the Court would be subjected to indignities that it does not deserve.
The defendant may proceed. He will get a fair trial beyond cavil, but I will not permit these tactics which are intended to wreck this trial.
Bring in the jury.
The trial record continues:
Mrs. Mott: Your Honor, I ask for a mistrial.
The Court: Please be seated.
Let the record show that counsel is now conversing with the defendant.
Madam, I have asked you to stay here.
Mrs. Mott: Your Honor, I am not representing this defendant any more.
The Court: I will ask you to sit here.
The Defendant: I do not wish to retain this woman as my counsel any further. She is fired.
The Court: Please sit down. I am wise to the game, and I would have to be a fool not to be cognizant of what is going on.
Mrs. Mott: I would like to say that I am taking exception to everything you say, and I would like it for the record.
The Court: Please sit down.
[616]*616You will have to defend yourself unless you want Mrs. Mott to represent you.
The Defendant: I fired this woman.
(Jury returned to court room.)
The Court: You may proceed, Mr. District Attorney.
The prosecution made an opening statement to the jury, after which the court recessed the case and continued to question Mrs. Mott as to whether she had conferred with Davis’s family. Mrs. Mott refused to answer, claiming she, herself, needed an attorney, and was “on the verge of collapse.” The judge then permitted her to leave, saying: “Let the record show that counsel is running out of the courtroom.”
Judge Leibowitz now faced the problem of when and how Davis was to have any new counsel. Questioning Davis, whom the judge ordered to be remanded for lack of bail, the judge learned that Davis wished to hire a lawyer though he did not have any particular lawyer in mind; he thought his family could afford to hire one for him and would do so.
The court then said:
Your family will go out and hire a lawyer. The lawyer will come in this afternoon, and if he wants a postponement, I will give him a postponement.
Then Davis’s brother Edward, who had been present throughout the foregoing proceedings, was questioned by Judge Leibowitz. Edward indicated that he would have to raise money to hire a lawyer, and that he needed time. The judge gave him until the following morning to produce a lawyer and again indicated that he felt this was merely another Davis maneuver to delay trial so as to have the case heard by a different judge than he.
The next' morning, Thursday, October 18th, Edward Davis appeared in court and stated that he had been unable to secure an attorney for his brother. Judge Leibowitz adjourned the trial until the following Monday, October 22nd, telling Edward Davis to get a lawyer at once, to bring him back immediately to confer with the defendant, and to be prepared to proceed with the trial on Monday.
On Monday, October 22nd, Edward Davis again appeared before the court without having obtained any attorney for his brother. He stated that he had contacted several lawyers but their fees were too high. He declined Judge Leibowitz’s offer of assigned counsel and claimed he was to contact another lawyer that afternoon. Mr. Thomas Brett, an attorney from the New York Legal Aid Society, happened to be present in the court house. The judge called Brett forward and gave him a summary of the proceedings to that date. He then offered Brett’s services to Davis, and offered to permit an hour’s adjournment in order for Brett to prepare the defense case. Mr. Brett states in his affidavit that he could not have accepted the case on these restrictive conditions, and if forced to represent Davis he would have moved for a mistrial on the ground that the events up to that time had been highly prejudicial to the defendant. However, he did not have to decline the assignment for the defendant refused to accept his services under the conditions the court had laid down. After this the court recessed the trial to Wednesday, October 24th, and told Edward Davis that he had a last two days in which to produce an attorney for his brother.
Edward Davis’s efforts during his final two day period were no more fruitful than his previous attempts,2 so, as [617]*617the judge had ordered, the trial proceeded on Wednesday with the defendant appearing without counsel. The defendant did not acquiesce to this arrangement. For example, during direct examination of a prosecution witness the following occurred :
The Court: Does the defendant have any objection to the picture going into evidence ?
The Defendant: I am only the defendant.
The Court: Do you object or don’t you object? Which is it?
The Defendant: I object to everything because I have no representation.
The Court: Mark it in evidence. Pay no attention to the remark of the defendant, gentlemen, about him having no representation.
Later, in the midst of the defendant’s presentation of his own case, the court made another offer of assigned counsel which was refused. The warden and our dissenting brother would make much of this refusal.
The Court: The jury has left the courtroom, and I will ask the defendant again:
Even at this late stage of the trial, the court is perfectly willing and eager to have you get the benefit of the assistance of counsel. You have steadfastly refused to cooperate. There has been a studied plan on your part and on the part of your brother, the cop, to wreck this trial, and you will not get away with it; possibly in the hopes that by the end of the month you will get some other Judge. I know what you are up to.
If you wish, I will have a member of the Legal Aid Society sit down and consult with you, and go over the mat[618]*618ter with you, and get his advice. You don’t have to take it, but it is not going to cost you anything. If you want that, I will have that done immediately, and if you need a little adjournment for an hour or so to go into the matter thoroughly with him, I will be happy to accommodate you, to the end that if the case ends in a conviction, that you won’t be in a position to holler that you were not treated fairly. I am giving you all the leeway and more than you are entitled to.
Don’t for a minute think that you are fooling this old Judge with your tactics, because you are not.
Do you want the help of a lawyer from the Legal Aid Society? You don’t have to use him if you don’t want him, but you can have him just by saying yes.
What is it you want?
The Defendant: I don’t want a lawyer.
Of course it is obvious that, at this stage of the trial after the state had put in its evidence, the defendant’s statement that he didn’t want a lawyer can only be considered as a rejection of the conditioned offer of assigned counsel, not a waiver of his right to counsel or an insistence upon his right freely to choose to conduct his own defense.
The defendant cross-examined the complaining witness and he presented several defense witnesses but, as one would anticipate, the record reveals his defense to be deficient in many respects compared with what might have been expected if he had had legal representation. He made no opening statement. He made no objection to any of the prosecution’s direct examination. His cross-examination was of limited effectiveness due to the difficulty he encountered in formulating acceptable questions. And cross-examination was further hindered by his failure to make the demand any lawyer would make, a demand that the pretrial statements of the prosecution witnesses be handed over to the defense for cross-examination purposes. See People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 7 A.L.R.3d 174 (1961). We agree with the court below that Davis’s performance was generally “inept and amateurish” and the record discloses he was pathetically outmatched by his adversary, an experienced prosecutor.
We turn now to a consideration of the applicable case law. It is settled beyond question that due process requires that a defendant charged with having commited a felony be allowed representation by counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Nevertheless, a defendant may not through a deliberate process of discharging retained or assigned counsel whenever his case is called for trial subvert sound judicial administration by such delaying tactics. United States v. Abbamonte, 348 F.2d 700 (2 Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 557, 15 L.Ed.2d 472 (1966); Leino v. United States, 338 F.2d 154 (10 Cir. 1964); United States v. Bentvena, 319 F.2d 916 (2 Cir.), cert. denied, sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). And the right to have counsel of one’s own choice may be waived by a defendant who fails to retain counsel within a reasonable time when he is financially able to do so. United States v. Arlen, 252 F.2d 491 (2 Cir. 1958). Moreover, we have recognized a right of a defendant to proceed without counsel and to refuse the representation of assigned counsel. United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2 Cir. 1965); United States v. Plattner, 330 F.2d 271 (2 Cir. 1964). Though a defendant has a right to select his own counsel if he acts expeditiously to do so, Releford v. United States, 288 F.2d 298 (9 Cir. 1961), he may not use this right to play a “cat and mouse” game with the court, Releford v. United States, 309 F.2d 706 (9 Cir. 1962), or by ruse or stratagem fraudulently seek to have the trial judge placed in a posL tion where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of [619]*619counsel. More particularly is this so when, during trial, the defendant discharges his counsel. Then, as we said in United States ex rel. Maldonado v. Denno, supra, 348 F.2d at 15: “There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge’s assessment of this balance. United States v. Bentvena, supra, 319 F.2d at 938; United States ex rel. Hyde v. McMann, supra, 263 F.2d at 943; United States v. Dennis, supra, 183 F.2d at 234.” Finally, whether a defendant has been afforded an adequate opportunity to obtain a lawyer so as to be represented by counsel when the case is tried must be determined from the particular circumstances in that case; it cannot be decided by any mechanical test. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L.Ed.2d 921 (1964).
In the particular circumstances of this case, the experienced trial judge below found from the record that the extraordinary performance of the state judge in intemperately abusing Mrs. Mott, defendant’s retained counsel, before the introduction of any evidence justified the defendant in believing that he could not obtain a fair trial unless she were discharged. The district judge also found that Davis never waived his right to counsel and that he was not given an adequate opportunity to secure new counsel after Mrs. Mott left. Our independent study of the state record fully supports this finding below, and we agree completely with Judge Foley’s analysis of the courtroom situation during the jury selection days. United States ex rel. Davis v. McMann, 252 F.Supp. 539, 541-543. Too, it should be observed on this point that with reference to these events Judge Foley heard oral testimony from one very important witness, Edward Davis, the defendant’s brother, and had an opportunity to judge his demeanor and credibility. See Fed.K.Civ.P. 52(a).
Proceeding on the assumption that the Davis family was making a bona fide attempt to secure trial counsel for William we must examine the adequacy of the opportunities afforded by the trial judge to obtain that representation.
From the withdrawal of Mrs. Mott as Davis’s retained counsel, Davis and his family were first given from Thursday morning until Friday morning to employ retained counsel, then until Monday morning, and then two more days, until Wednesday morning. While the total period included a Thursday afternoon, a Friday, a Monday and a Tuesday, and might have been adequate if taken as an aggregate, see Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), but see United States v. Mitchell, 354 F.2d 767 (2 Cir. 1966), each of the three periods must be considered separately because Judge Leibowitz in each case gave no indication that the time he allowed might be extended beyond his firmly stated deadline.
The Mitchell case, supra, presents a closely analogous situation to the present case. Mitchell, accused of wilful failure to report for induction into the Armed Forces, found it necessary to discharge his retained counsel shortly before his trial was scheduled to begin. He was given 5 days, from Wednesday to Monday, to retain new counsel, but he was unsuccessful. On Monday he refused court-appointed counsel, saying he needed time to retain another counsel of his own choice. The court proceeded with the trial. Our court held that the trial court erred in not granting the defendant more time to get retained counsel. Mitchell in retaining counsel had difficulties that are not present here, because he was charged with a most unpopular crime and his case involved difficult legal issues with “decided First Amendment overtones.” But Davis faced a difficulty not present in Mitchell; the Davis family had marginal financial resources. In a time when the poor receive representation without charge and the well-to-do protect their interests by expending substantial sums to retain eminent counsel, it is not amiss for judges to remember the plight of the [620]*620wage earner who cannot afford to hire his champion without thought of the cost but who feels that even his slim pocketbook will enable him to select better representation, more attuned to his interests, than is available to him through court-appointed counsel. Moreover, Davis’s case is not without substantial legal issues. The district court found that “There were evidentiary problems of consequence, particularly concerning an alleged letter written by defendant to the complainant asking the complainant to accept money from his parents, with ramifications of compounding a felony.” 252 F.Supp. at 544. When all these circumstances are reviewed and consideration is given to Edward Davis’s testimony relative to the problems his limited finances created for him when he sought to retain counsel, see footnote 2, supra, we cannot say that any of the three short periods granted by Judge Leibowitz, or all the periods in the aggregate, allowed enough time for the Davis family to secure retained counsel.
We agree with the district judge that appellee was not accorded his constitutional right to counsel by being given a reasonable opportunity to retain counsel of his own choice, and the order below is affirmed.
Although we affirm on the ground that Davis was not given adequate time to retain counsel of his choice, it might be useful to consider the situation which would have been presented if the trial judge had given Davis adequate opportunity to secure counsel and for some reason Davis did not obtain representation. While we find that the time given Davis in the present case was inadequate, we do not mean to imply that a defendant must be permitted to stall criminal proceedings, and particularly a criminal jury trial, merely because he claims to the court that he is attempting to employ counsel.
If after a reasonable period a defendant is unable to retain counsel he should be assigned counsel by the court, United States v. Bentvena, 319 F.2d 916, 936 (2 Cir.), cert. denied, sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963) unless he clearly and unequivocally indicates that he wishes to proceed without any counsel. United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2 Cir. 1965); United States v. Plattner, 330 F.2d 271 (2 Cir. 1964). In the present case it is clear that Davis wished to employ retained counsel rather than accept assigned counsel but it is by no means clear that his refusals to accept assigned counsel indicated a desire to defend himself rather than indicating a strong preference for counsel of his own choice.
When a defendant is assigned counsel by the court the assignment must be made in a manner which will allow the assigned attorney time to present an adequate defense on behalf of his client, for otherwise the assignment is of negligible value; thus a defendant who knows the facts of his case may indeed be better off defending himself without an attorney than with an inadequately prepared one.
Examining into Judge Leibowitz’s two offers of assigned counsel to Davis, the first, two days before the trial finally commenced, and the second during Davis’s presentation of his defense, we note that both offers were made with the statement that there would be an adjournment of “an hour or so” within which assigned counsel would be expected to prepare the case, and both of these offers were refused by Davis. While it is entirely possible, perhaps even probable, that if Davis had accepted either offer of assigned counsel Judge Leibowitz would have granted counsel more time to familiarize himself with the case than the stated one hour, we cannot make such an assumption from anything that appears in the trial record. In a criminal case involving three counts, five witnesses, and several serious legal problems, the time to prepare the defense that the judge was allowing to an assigned counsel was, on the face of it, grossly inadequate. Indeed, Mr. Thomas Brett, the proposed attorney in at least one of the two offers, would have been [621]*621unwilling to take the case under such conditions.3
The order below appealed from is affirmed.