Full opinion text
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS HAMILTON, District Judge. Petitioner D.H. Fleenor is a prisoner of the State of Indiana under a sentence of death. He was convicted in the Johnson Circuit Court of two counts of murder and one count of burglary in the murders of his wife’s mother and stepfather, Nyla Jean Harlow and Bill Harlow. His convictions and sentence were affirmed on appeal in Fleenor v. State, 514 N.E.2d 80 (Ind.1987) (Fleenor I)- A state trial court denied his petition for post-conviction relief, and that denial was affirmed on appeal in Fleenor v. State, 622 N.E.2d 140 (Ind.1993) (Fleenor II)- The Supreme Court of the United States denied certiorari review of both final decisions. In this action, Fleenor petitions for a writ of habeas corpus setting aside his convictions and sentence. The respondent has filed a return to the court’s order to show cause, and Fleenor has filed his reply. The court has reviewed in detail the records of the proceedings in the state courts and finds no need for an evidentiary hearing. For the reasons explained below, the court denies Fleenor’s petition for a writ of habeas corpus. Background The evening of December 12,1982, Flee-nor murdered Nyla Jean Harlow and Bill Harlow, the mother and stepfather of his estranged wife, Sandra Sedam. Fleenor committed the murders in the Harlows’ home in front of Sandra, her son, and two other Harlow grandchildren. Fleenor was charged in the Jefferson Circuit Court with two counts of murder and one count of burglary. The trial was moved to Johnson County, where a jury found Fleenor guilty of each of the charges. The record shows the following facts. The night before the murders, Fleenor was drinking in a bar. He told an acquaintance that he was going to “kill all five of them” and that he also ought to kill Judge Hoying of the Jefferson Superior Court. 11 TR 3567, 3569, 3581. Fleenor also told this acquaintance that he would see Fleenor in the paper. 11 TR 3575-76. Fleenor told the bartender that he would probably never see Fleenor again because he would be spending the rest of his life in jail. 11 TR 3590. Late the next morning, Sunday, December 12th, he told a friend about the problems he was having with the Harlows and said that he ought to get a gun and kill them. 11 TR 3603, 3613-14. That afternoon, with the help of another friend, Fleenor bought a .22 caliber pistol and some ammunition from an' acquaintance. 11 TR 3622-26. The Supreme Court of Indiana continued the story in Fleenor I: During the course of the afternoon, [Fleenor] consumed approximately four beers, and he smoked a marijuana cigarette. He did not appear to be drunk or out of control to his companion. Between 4:00 p.m. and 5:00 p.m., Sandra Sedam and Nyla Harlow were Christmas shopping at a department store. At the store, they encountered [Fleenor], and they talked to him for about ten minutes. [Fleenor] was agitated and might have been drinking before this ' conversation. At approximately 6:30 p.m., [Fleenor] sought out Sandra Se-dam at a church service. He behaved properly in the church, he apologized for the earlier meeting, and then he left. 514 N.E.2d at 82-83. Fleenor then got a ride to the Harlows’ home from two other friends, Michael Albert and Ron Griffin. Fleenor told them that two girls lived there and that their father did not like him. He asked Griffin to go to the front door and, if a man answered the door, to say he was looking for “John Smith.” As Griffin went to the door, he saw Fleenor duck down in the back seat of the car. 11 TR 3700-06, 3682-84. No one answered the door. Griffin returned to the car. Fleenor then got out of the car and said he would wait for the people coming back to the house. After Griffin and Albert drove away, Fleenor broke into the Harlows’ home by prying open the back door. He replaced the screws to conceal the break-in. He hid in a bedroom closet and waited. 12 TR 3780-81. At about 7:30 p.m., Bill and Nyla Jean Harlow returned home from church with Sandra Sedam, Sandra’s son Justin, and Bill Harlow’s grandchildren Billy and Angie. At that time Justin was two years old, Billy was ten, and Angie was twelve. Bill and Nyla Jean started talking about Fleenor having shown up- at the church. At that point, Fleenor appeared in the hallway. He shot Bill in the abdomen. Bill collapsed to the floor, but that wound was not fatal. (The coroner testified that the shot to Bill’s abdomen did not penetrate the subcutaneous tissue, did not enter the abdominal cavity, and would not have been fatal. 10 TR 3429-30.) Fleenor ordered the two women and the children to sit on the couch and not to help Bill. To make his point, Fleenor threatened to kill two year old Justin if they did not follow his orders. 11 TR 3737. After a time Fleenor allowed Nyla Jean to go to her husband Bill. As she tried to assist Bill, Fleenor took aim and shot her in the top of the head from across the room. The shot was fatal, but she made noises for a time as if she were suffering. 11 TR 3739-40; 12 TR 3933. Fleenor then ordered Sandra and the two older children to carry her into the bedroom. 11 TR 3739-40. Fleenor later discovered that Bill Harlow was still conscious. Bill was asking about his wife and begged Fleenor not to leave him there. Bill told him that he was unable to get up, but Fleenor said that he had once been shot and had been able to move. 12 TR 3938. Sandra pleaded with Fleenor not to shoot Bill again, but Flee-nor said, “You know I have to ... I can’t let him suffer any more.” Fleenor then fired one more shot into the back of Bill’s head, killing him. 10 TR 3429-30, 12 TR 3908, 3938. During the evening Fleenor became concerned that other family members might come to the Harlows’ home, so he forced Sandra, Billy, Angie, and Justin to drive with him to the home of James Sedam, Sandra’s brother. Fleenor then ordered Angie to tell James that they were going out of town for a few days, and he threatened to shoot the others in the car and the people in James’ house if she did not follow his orders. 11 TR 3743; 12 TR 3909, 3940. Angie gave James the message, and Fleenor, Sandra, and the children then returned to the Harlow home. Fleenor barricaded the children into one room, and he and Sandra spent the night in another bedroom. 12 TR 3875-76. The bodies of Nyla Jean and Bill Harlow were still in the house. The next morning, Fleenor took money and a checkbook from Bill’s wallet and Nyla Jean’s purse. Then he, Sandra, Billy, Angie, and Justin drove to Tennessee. While in Tennessee, Fleenor called his mother in Indiana and told her that he thought he had killed the Harlows. A few days later, a SWAT team of Tennessee police surrounded the house where Flee-nor and his family were staying. Fleenor held his family hostage for a time, threatening to kill the children if the police interfered. 12 TR 3776, 3951. He was eventually arrested by the use of force. 10 TR 3446-60; 12 TR 3771-78, 3952-53. Fleenor was returned to Indiana to face charges of murder and burglary. He was held in the Jefferson County Jail. The prosecutor filed notice of his intention to seek the death penalty. While in jail, Fleenor wrote several letters to a girlfriend, Debra Slaughter. 12 TR 3982-97. He begged her to break him out of jail by obtaining a gun and a car, and by then forcing the night police dispatcher to unlock his cell at gunpoint. The letters contain detailed instructions for carrying out an escape. Fleenor had his mother secretly take those letters to Slaughter. One letter read in part: This hurt’s me deeply to say but sweet heart I’ve only got a matter of time to five. I talked with my to attorney’s the past to day’s. There is no hope for me I’m getting the death sentence. I didn’t think they had it here in Indiana but they do I’ve got 2 charge’s of first degree murder one charge is enough on the way I done thing’s that’s not all burgular to comit bodily harm kidnapping Interstate Flight. My lawyer’s told me I was for sure to get the chair and I know myself. I’ve got 17 witness against me. I went for the crazy test today They said there was nothing wrong with me at the time. 12 TR 3983-3(sic). Another letter said in part: Yesterday a guy from the State Hospital came down to talk to me I blew up on him I admitted I done it said I’d do it again if I had it to do all over I went wild with my mouth. I’m hung before I even go to court. Dam they got more witness from out of these bar’s down here that heard me say time and time again I was going to do it. What the hell can I say but get me out of this fuckin place while you can if you love me and want to be with me. 12 TR 3987-2(sic). Another letter told Slaughter: “Don’t kill nobody unless it’s the last thing you can do,” and to shoot the dispatcher in the arm if he tried to touch the radio. 12 TR 3984-4 & -5. Fleenor told Slaughter it was urgent that she help him escape before he was transferred to a more secure jail in another county. Police arrested Slaughter in a Laundromat across the street from the jail one night before Fleenor was scheduled to be transported to the other jail. She was driving a recently borrowed car and was carrying a recently purchased pistol. 12 TR 3979-81. In a trial conducted in December 1983, a Johnson County jury found Fleenor guilty on two counts of murder and one of burglary. Indiana statutes provide that after a guilty verdict is returned on a capital offense, the jury hears evidence, arguments and instructions on the death penalty and then makes a recommendation to the trial judge as to whether the death sentence should be imposed. The judge makes the actual sentencing decision. See Ind.Code § 35-50-2-9(d) & (e). Pursuant to the statutory procedure, the jury heard evidence and argument concerning the State’s request for a recommendation on the death penalty. During the sentencing phase of the trial, Fleenor conceded that three aggravating factors had been proven beyond a reasonable doubt. He had committed the murders by lying in wait; he had committed the second murder of Bill Harlow knowing that he had already murdered Nyla Jean Harlow; and he committed the murder in the course of committing burglary. 16 TR 4998 (closing argument). The jury recommended the death penalty. After a further hearing, Judge Larry J. McKinney sentenced Fleenor to death. He found that three statutorily defined aggravating factors had been proven beyond a"'reasonable doubt: (1) commission of a murder during the perpetration of a burglary; (2) commission of a murder by lying in wait; and (3) commission of multiple murders. See Ind.Code § 35-50-2-9. He found no mitigating circumstances. Additional facts are set forth in the discussion of specific issues. Issues Fleenor raises many constitutional challenges to both his conviction and his death sentence. He contends: 1. The jury was led to believe that responsibility for determining the appropriateness of the death sentence rested elsewhere, contrary to the mandate of Caldwell v. Mississippi 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). 2. Fleenor’s trial counsel failed to provide effective assistance at sentencing by failing to adequately investigate and introduce available mitigating evidence. 3. The trial court erroneously failed to excuse jurors for cause who had said they would automatically recommend the death penalty for any person convicted of murder. 4. The trial court failed to consider Fleenor’s arguments at sentencing and failed to weigh the evidence of mitigation that was introduced. 5. The prosecutor misstated the law and the evidence and improperly appealed to the jurors’ emotions in both the guilt-innocence and sentencing phases of the trial. 6. The jury heard improper evidence, argument, and instructions concerning the possibility that Fleenor might be released after a relatively short time in prison if not sentenced to death. 7. The trial court’s jury instructions at both phases of the trial deprived Fleenor of a fair trial. 8. The prosecutor violated the Fifth, Sixth, Eighth, and Fourteenth Amendments by using evidence regarding Fleenor’s future dangerousness. 9. The trial court relied on two invalid aggravating circumstances (murder in the course of a burglary and murder by lying in wait). 10. Indiana’s death penalty statute is unconstitutional on a variety of grounds. The court addresses the issues in order. Discussion Fleenor brings his petition under 28 U.S.C. § 2254(a), which provides that a writ of habeas corpus may issue if Fleenor is “in custody in violation of the Constitution or laws or treaties of the United States.” Under the legal standards that apply to Fleenor’s petition, this court must make independent and plenary judgments about the legal issues presented, rather than merely asking whether the state courts applied federal constitutional law unreasonably. See Abrams v. Barnett, 121 F.3d 1036, 1037-38 (7th Cir.1997); Lindh v. Murphy, 96 F.3d 856, 861 (7th Cir.1996) (en banc) (discussing law prior to enactment of Anti-Terrorism and Effective Death Penalty Act of 1996), citing Brown v. Allen, 344 U.S. 443, 458, 73 S.Ct. 397, 97 L.Ed. 469 (1953). In addition, Fleenor may draw on the entire body of federal case law, rather than being restricted only to decisions of the Supreme Court. Abrams v. Barnett, 121 F.3d at 1037-38. I. THE APPLICATION OF CALDWELL v. MISSISSIPPI TO ARGUMENTS AND INSTRUCTIONS CONCERNING THE EXTENT OF THE JURY’S RESPONSIBILITY FOR A DEATH SENTENCE. A death sentence may not be based on “a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell the defense used part of its closing argument to emphasize to the jury both the gravity and the responsibility of a verdict for death. Defense counsel told the jury: “It’s going to be your decision. *** You are the judges and you will have to decide his fate. It is an awesome responsibility, I know — an awesome responsibility.” In rebuttal, the prosecutor told the jury that the. defense argument was unfair because the defense counsel “know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it.” After defense counsel objected, the trial judge overruled and explained: “I think it is proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.” The prosecutor then repeated to the jury that their decision is “automatically reviewable by the Supreme Court.” See 472 U.S. at 325-26, 105 S.Ct. 2633. The problem that the Supreme Court identified in Caldwell was that the prosecutor, with the explicit approval of the trial judge, had been permitted to minimize the jury’s role and actually to mislead them about their role. As the dissenting justices in the state supreme court had said: “There is no appellate mercy.” Without an explanation of the limited role of appellate review in determining whether a death sentence is warranted in a case, the comments of the prosecutor and judge violated the defendant’s Eighth Amendment rights. “[T]he uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” Id. at 333, 105 S.Ct. 2633. “This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its ‘truly awesome responsibility.’ ” Id. at 341. Caldwell was decided while Fleenor’s case was still on direct review, so Fleenor is entitled to rely on the principles announced there. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Sawyer v. Smith, 497 U.S. 227, 241-45, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). Under the Mississippi law at issue in Caldwell and under the death penalty laws of most states, the jury in a capital case makes the decision whether to impose the death penalty. That is not true, however, in at least Indiana, Florida, and Alabama. In these states, the jury’s verdict at the sentencing phase of the trial is a recommendation to the trial judge, who must make the sentencing decision. See Roark v. State, 644 N.E.2d 565, 570 (Ind.1994) (summarizing Indiana structure of death penalty sentencing). This difference raises questions about how the principles of Caldwell apply in a trial where the jury makes a sentencing recommendation rather than a sentencing decision. The challenge is to instruct the jury accurately about its role in the sentencing decision without unduly minimizing or exaggerating that role, and yet, at the same time, to avoid confusing the jury about the often complex and constantly evolving processes and standards for appellate and collateral review of death sentences. The Supreme Court of the United States has not yet addressed directly those questions in the context of a jury recommendation statute, see Dugger v. Adams, 489 U.S. 401, 408 & n. 4, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989) (in case arising in Florida, noting that merits of Caldwell claim were not presented), nor has the Seventh Circuit addressed them under Indiana’s jury recommendation statute. The Eleventh Circuit has often dealt with this problem. See, e.g., Davis v. Singletary, 119 F.3d 1471, 1481-82 (11th Cir.1997); Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988) (ere banc) (prosecutor’s closing argument to jury required reversal of death sentence pursuant to Caldwell); Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988) (ere banc) (comments by prosecutor and trial judge did not require reversal of death sentence under Caldwell). The Supreme Court of Indiana has also recognized that the principles of Caldwell can require reversal of death sentences under Indiana’s jury recommendation statute. See Fleenor II, 622 N.E.2d at 143; Burris v. State, 558 N.E.2d 1067, 1071 (Ind.1990) (deciding Caldwell claim on the merits); Wallace v. State, 553 N.E.2d 456, 469-70 (Ind.1990) (same). Caldwell applies only where the jury is misled about its role in the sentencing process in a way that allows it to feel less responsible for the sentencing decision than it actually is. This is clear from the majority/plurality opinion in Caldwell, from Justice O’Connor’s concurring opinion, and from later comments by the Court in Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); Darden v. Wainwright, 477 U.S. 168, 183-84 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); and Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). That is, to violate the principles of Caldwell, the remarks to the jury must describe inaccurately the role of the jury under state law. The court first reviews the relevant comments and then analyzes them in terms of their accuracy as a matter of Indiana law. A. The Remarks to the Jury The role of the jury in the sentencing decision was the subject of argument by both counsel and instructions by the court. In the closing argument in the penalty phase of the trial, Fleenor’s counsel argued: Imposing a death sentence is not a routine decision and our law does not permit anyone who would impose it, routinely, to sit on a Jury. The law requires that you determine whether the nature of both— both the offense and the offender are such that death must be imposed. If they are not, it is your obligation to return a recommendation against the death penalty. Now, in a short time, His Honor will instruct you on how you are to approach the recommendation of whether or not to kill D.H. Fleenor and what factors you are to consider in doing that. 16 TR 4997. He continued later: In making a decision of this magnitude, you want to be very certain that you are correct. You want to be very certain that death is the right sentence before you recommend D.H. to the electric chair. Now, I know that not one of you would return the death recommendation unless you were absolutely certain you were doing the right thing. It doesn’t matter that none of your fellow Jurors would agree with you. You can have 11 Jurors coming out the other way, but if you believe — if you believe that a death recommendation is wrong, you have the responsibility to stay with your convictions and insist on a recommendation against the death penalty. Please have the courage to do that. This is your responsibility, as a Juror. You owe it to this Court and you owe it to yourself— mostly, to yourself. There is no way that you can ever escape or avoid the responsibility for recommending to take the life of a fellow human being. This is a personal responsibility that exists in this courtroom, today, and is upon the shoulders of each one of you. It is yours and yours, alone. 17 TR 5009-10. He added a few moments later: You have to decide whether this case is one of those few homicide cases in which it is necessary that the death penalty be recommended. We’re not here to debate whether or not there should be capital punishment to the — it’s already on the books. But, your answer to our questions on it, in voir dire, in those answers, everyone of you indicated that you would be willing to consider the possibility of imposing the death sentence, in certain cases. But death is not meant to be the punishment for all homicides. Otherwise, we wouldn’t need to be here, today. I want to make that very clear. There is no case in which the law requires a death sentence; there is no case in which a death sentence must be imposed. This is purely your personal decision. You decide; you recommend. You recommend. 17 TR 5013-14. The prosecutor responded to this line of argument in his rebuttal argument: And there was a lot of talk about what if we make a mistake. I’ve thought about that. What if I’m wrong? You know. You’ve got to put a lot of people through a lot of — a lot of trouble, not to mention the defendant. What if I’m wrong? What if you’re wrong? The Judge is going to consider your final recommendation, in this case. Or his re — your recommendation. He’s gonna make the final decision, Number One. Number Two, the law of this State requires — it’s not optional — it requires that every death penalty decision is reviewed by the Supreme Court of this State. The Supreme Court of Indiana is gonna, automatically, review a death penalty case in this State. There’s governors; there’s Federal Judges; U.S. Supreme Court Justices and the U — U.S. Supreme Court, itself. You folks live in the real world and you know that that’s — that’s not — this is not the end of this case. The bird is not in your hands. You are asked to make a recommendation — a serious recommendation. It’s not the end of this case. First of all, it’s not a bird — it’s not an innocent bird. And, secondly, it’s not in your hands. You’re only part of the system. I’m only part of it. You’re only part of it. The Judge is only part of it. The Supreme Court — it’s possible for human beings to make mistakes. Our law is a wise and reasonable law — they understand that. It doesn’t say that uh — that the life of D.H. Fleenor is in your hands. It knows that even 12 wise people, in Johnson County, might make a mistake. It takes into — that into account and it says that not only the Jury, but the Judge who sits through the evidence, shall consider it. Maybe the Jury’s wrong; maybe they missed something in the evidence; maybe they didn’t apply this balancing of mitigating circumstances versus aggravating circumstances, correctly. And, then, we go to the Indiana Supreme Court — well, what if the Judge is wrong? Maybe he’s made a mistake. We go to the Indiana Supreme Court and then beyond that there are — like I said, we live in a real world, we know there are many other recourses if somebody’s made a mistake in this kind of case. Is it really necessary? Is it really necessary? Well, I ask you: Is that the issue in this case? Has anyone said that that is the issue in this case? The bird is not in your hands, Ladies and Gentlemen. It’s in the hands of — many of the branches of law enforcement in this — or, criminal justice in this State. 17 TR 5072-75. In his instructions to the jury on the death penalty issue, the trial judge instructed the jury about weighing aggravating and mitigating factors, and then, with respect to the role of the jury’s decision, instructed as follows: The Court is not bound by your recommendation. If the State failed to prove beyond a reasonable doubt the existence of at least one aggravating circumstance or if you find that any mitigating circumstances outweigh the aggravating circumstances, you should not recommend the death penalty. If the State did prove beyond a reasonable doubt the existence of one aggravating circumstance and you further find that such aggravating circumstances outweigh any mitigating circumstances, you may recommend that the death penalty be imposed. ****** You, the Jury, are vested with the power by statute to recommend to this Court, under the circumstances previously discussed, whether or not the defendant is to receive the death penalty. Although your recommendation is not binding upon this Court, it is a very valuable contribution to the decision making process of this Court. íjí * * * ‡ * Your verdict must be unanimous. The Court shall make the final determination of the sentence after considering the Jury’s recommendation and the sentence shall be based on the same standards that the Jury was required to consider. The Court is not bound by the Jury’s recommendation. 17 TR 5088-90, 5092. In addition to these comments in closing arguments and instructions on the death penalty, the role of the jury’s decision had been addressed earlier in voir dire. As the Supreme Court of Indiana described it, the trial judge’s questions commonly took the following form: [I]t’s the Courts responsibility ultimately, you make a recommendation to the Court, the Court either follows it or doesn’t, and then the Court ... can impose the death penalty, not impose the death penalty, and can give a sentence ... with a wide range of possibilities. You’re not ... charged with that responsibility in this case. * * % ‡ % * Now your recommendation is just that. It’s a recommendation it is not binding on the Court.... The Court may ignore it; the Court can accept it. In the final analysis the decision will be up to the Court. Fleenor II, 622 N.E.2d at 143. B. The Jury’s Role Under Indiana Law In Fleenor II, the Supreme Court of Indiana reviewed the challenged remarks of the trial judge and said they are “consistent with roles defined for judge and jury, but are not entirely accurate. They do not inform the jury that the judge is required to give due consideration to the recommendation in deciding upon the sentence.” 622 N.E.2d at 143. Concerning Fleenor’s complaint that the judge had not made strong statements about the importance of the recommendation, such as those approved in Huffman v. State, 543 N.E.2d 360, 372 (1989), the Indiana court said this complaint “is not unjustified. The trial court’s advice would have been better had some such statements been interjected.” 622 N.E.2d at 144. The Supreme Court of Indiana declined, however, to set aside the death sentence. It explained that the comments during voir dire had to be taken in context, keeping in mind that jurors learn more about the trial and their role in it during the course of the trial. Id. The court then explained: The information supplied in the final summations of counsel must also be considered in its proper place. Jurors become aware of the role of attorneys as advocates during the trial. Most jurors understand the difference between evidence, statements of counsel, and admonitions of the court. Following the deliberation and rendition of the verdicts of guilty, the jury would be fully aware of the nature and importance of its recommendation. Defense counsel’s exaggeration that the defendant’s life was in the jurors’ hands would have been received as such, and the trial prosecutor’s reference to appellate review of the decision acts as a counter thrust having little or no bearing on the jury’s recommendation role. Thus, we think that the importance placed upon the sentencing phase of the trial as it unfolded, together with the trial court’s formal instructions, ameliorated any tendency of the deficiencies or shortcomings in voir dire examination, the summations, and the jury instructions, to dilute the sense of jury responsibility. We find no significant danger of an Eighth Amendment violation, and affirm the trial court’s rejection of this ground for relief on its merits. Id. at 144-45. Despite the comments by the Supreme Court of Indiana about ways in which the issue might have been handled better, the trial court did not mislead the jurors about their role in sentencing. At the time Flee-nor was tried, the Supreme Court of Indiana had recently said about the jury’s role in capital sentencing: Notwithstanding that the sentence determination by the jury is not binding upon the judge, we do not regard it as a mere formality having no substantive value. If we did, error if any, in such regard [instructing jury about terms of years] could not be other than harmless. On the contrary, the recommendation of the jury is a very valuable contribution to the process, in that it comes from a group representative of the defendant’s peers, who are likely to reflect, collectively, the standards of the community. Brewer v. State, 275 Ind. 338, 417 N.E.2d 889, 909 (1981). The final instructions to the jury at the sentencing phase of Flee-nor’s trial echoed this recent language from Brewer: “Although your recommendation is not binding upon this Court, it is a very valuable contribution to the decision making process of this Court.” 17 TR 5090. In the years since Fleenor’s trial, the Supreme Court of Indiana has repeatedly addressed the appropriate roles for judge and jury in capital sentencing, especially in cases in which trial judges have made decisions contrary to the jury recommendations. In Martinez Chavez v. State, 534 N.E.2d 731, 735 (Ind.1989), the court reversed the trial judge’s sentence of death imposed after the jury recommended against it. The court stated the rule it would apply: In order to sentence a defendant to death after the jury has recommended against death, the facts justifying a death sentence should be so clear and convincing that virtually no reasonable person could disagree that death was appropriate in light of the offender and his crime. A trial court cannot override the jury’s recommendation unless the facts meet this standard. 534 N.E.2d at 735. Because reasonable people could differ on the appropriateness of the death penalty for the defendant in that case, the trial court was held to have erred when it overrode the jury’s recommendation and the death sentence was reversed. The Supreme Court of Indiana adhered to this view in denying rehearing, although it clarified that the reasonableness applied not to jurors as people but to their recommendation. Martinez Chavez v. State, 539 N.E.2d 4, 5 (Ind.1989). In two later cases, the court applied the Martinez Chavez standard and reversed death sentences that had been imposed contrary to jury recommendations. Jackson v. State, 597 N.E.2d 950, 955-56 (Ind.1992); Kennedy v. State, 620 N.E.2d 17, 19-20 (Ind.1993). In Roark v. State, the court revisited the issue and concluded that the Martinez Chavez standard needed modification because it interfered with the trial court’s explicit statutory authority not to be bound by the jury’s recommendation. 644 N.E.2d 565, 570 (Ind.1994). The court went on to require trial courts, at the point of final decision, to “reflect upon the jury recommendation against imposing death.” Id. The court also said, however, that in carrying out its own obligation under the Indiana Constitution to review the appropriateness of death sentences, it would still apply the Martinez Chavez standard. That is, during review of a death sentence where the jury had recommended against death, the Supreme Court of Indiana would not affirm a death sentence unless “all the facts available in the record point so clearly to the imposition of the death penalty that the jury’s recommendation is unreasonable.” Id. at 571. A divided court in Roark reversed the death sentence despite powerful evidence supporting its imposition. The court majority found that evidence of the defendant’s horrific childhood, alcoholism, drug abuse, limited. intelligence, mental impairment and illness, and lack of prior criminal history, and certain other factors would permit a reasonable decision against the death penalty. Id. at 573. In Schiro v. State, 669 N.E.2d 1357 (Ind.1996), the court adhered to the Martinez Chavez standard and again reversed a sentence of death imposed by a trial judge after a jury had recommended against death. Even more recently, in Peterson v. State, the Supreme Court of Indiana appears to have reached consensus on the issue: As part of our death penalty review we will independently consider the jury recommendation against death and determine whether the death penalty is appropriate. However, we will not employ a standard that requires the facts in the record to so clearly point to the imposition of the death penalty that the jury’s recommendation is unreasonable. 674 N.E.2d 528, 540 (Ind.1996) (emphasis in original); accord, id. at 543 (Sullivan, J., concurring) (“Several times we have attempted to articulate a standard for jury overrides but never without drawing dissents. While I myself find the approach articulated by Chief Justice Shepard in Martinez Chavez, 539 N.E.2d at 5, to be closest to my view of how these situations should be handled, I join today’s opinion both because I do not find it varies too much from the Martinez Chavez standard and because of the advantageousness of our court finally reaching consensus in this important area.”). C. The State’s Harmless Error Argument The State argues that any Caldwell error was rendered harmless because the judge, not the jury, makes the sentencing decision under Indiana law. The Supreme Court of Indiana has at least implicitly rejected that position every time it has decided Caldwell arguments on their merits. The State’s argument also is not consistent with the decisions of the Eleventh Circuit applying Caldwell to cases arising from Florida and Alabama. Precisely because Indiana law requires the sentencing judge to give some substantial degree of attention to the jury’s recommendation — because the jury recommendation is presumed to influence, though not control, the judge’s decision — a true Caldwell error in an Indiana case cannot be treated as harmless simply because the. jury’s role is to make a recommendation to the trial judge. D. Applying the Principles of Caldwell v. Mississippi The issue here is not whether the trial judge correctly anticipated all the nuances later stated by the Supreme Court of Indiana concerning the role of the jury’s sentencing recommendation. The State court has a vital supervisory power over the State’s trial courts and has used that power over the years to tell the trial courts how better to communicate that role to juries. The issue under Caldwell, as applied to a recommendation statute, is whether the judge’s decision to sentence Fleenor to death was influenced by a jury that had been misled to believe that its role in sentencing was less important than it actually was. The jury was entitled to know that its decision would be a recommendation. The trial judge correctly instructed the jury about that. The last word the jury heard on the subject came in the judge’s final instructions at the penalty phase, which is the word likely to have the greatest weight and credibility with the jury. Those instructions correctly told the jury that its decision was a recommendation and not a binding decision, but that its recommendation would be a “very valuable contribution” to the judge’s decision. At that time, as the Supreme Court of Indiana pointed out, the jury could not have been under the impression that its role in the process was minor or trivial. The jury had heard all the evidence as to guilt and had rendered a verdict of guilty. The jurors then returned to hear more evidence and powerful arguments about the appropriate penalty in the case. Then-Justice Rehnquist’s comments in dissent in Caldwell itself have more force here, under a recommendation statute, than they had in Caldwell: Indeed, under the circumstances here the importance of the jury’s role could hardly have been lost on the jurors themselves. The charge at the guilt phase highlighted the jurors’ role as factfinders and their duty to follow the law in reaching their conclusions. The importance of their role at sentencing was evident from the charge, from the impassioned plea for mercy from petitioner’s counsel, petitioner, and petitioner’s mother, as well as from the prosecutor’s rebuttal. It is indeed difficult to agree with the Court that a group subjected to all this attention nevertheless interpreted a few remarks by the prosecutor to mean that the group’s decision was no more than a sideshow — a mere “preliminary step” toward the ultimate sentencing determination. 472 U.S. at 349, 105 S.Ct. 2633 (Rehnquist, J., dissenting). Accord, Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir.1997) (remarks about role of jury’s recommendation must be considered “in the context of the entire trial”); Waters v. Thomas, 46 F.3d 1506, 1524 (11th Cir.1995) (en banc) (remarks about jury’s role under jury sentencing statute must be considered in context). The same circumstances were present here to show the jury that its role was vital, yet less decisive than the jury’s role in Caldwell. While a more forceful affirmation of the importance of the jury’s role in this case might have been desirable, as the Supreme Court of Indiana observed, the fact that this aspect of the case might have been handled in a better way does not mean that the result was unconstitutional. The difference between optimal treatment of the issue — which the Supreme Court of Indiana sought to promote in its comments in this case — and the sum of the treatment here does not amount to a violation of Fleenor’s constitutional rights. See Caldwell, 472 U.S. at 350-51, 105 S.Ct. 2633 (“Although the Eighth Amendment requires certain processes designed to prevent the arbitrary imposition of capital punishment, it does not follow that every proceeding that strays from the optimum is ipso facto constitutionally unreliable. Zant and Barclay hold as much.”) (Rehnquist, J., dissenting), citing Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983) (plurality opinion). The jury knew it was making a recommendation, and it knew its recommendation was an important part of the process. To put it another way, the difference between an instruction that the judge would give “due consideration” to the jury’s recommendation, as suggested by the Supreme Court of Indiana in this case, and the trial judge’s actual instruction that the jury’s recommendation would be a “very valuable contribution to the court’s decision-making process” does not rise to the level of an Eighth Amendment violation. Fleenor has focused attention on the trial judge’s comments in voir dire to the effect that he could “ignore” the jury’s recommendation. In explaining to many prospective jurors their role and the fact that any verdict about the sentence would be a recommendation, the judge said that he could “accept” it or “ignore” it. At that point the judge was trying to introduce prospective jurors to the basic point that their role at sentencing would be to make a recommendation. At that phase of the trial the judge was not trying to explain the nuances of how the jury’s recommendation might figure in his own decision. In context, the dichotomy in the voir dire between “accept” and “ignore” clearly meant “follow” or “not follow.” By the time of the penalty phase, however, the jurors had already heard weeks of testimony, had deliberated and rendered guilty verdicts, and had heard additional evidence and argument on the appropriate penalty in the case. By the time the judge told the jury that their recommendation would be a “very valuable contribution” to the court’s decision-making process, nobody in the courtroom could seriously have expected the judge literally to “ignore” the jury recommendation. He could certainly disagree, as he told the jury, but he could not ignore the recommendation, nor is there any indication that he did so. Overall, this aspect of trial “would have been better,” as the Supreme Court of Indiana put it, if the judge had done more to stress the importance of the jury’s recommendation, but the treatment of the issue did not violate the Eighth Amendment as interpreted in Caldwell, II. EFFECTIVE ASSISTANCE OF COUNSEL REGARDING MITIGATION EVIDENCE AT THE PENALTY PHASE The defense reasonably conceded at the penalty phase of the trial that all three of the alleged statutory aggravating factors had been proven beyond a reasonable doubt. Fleenor committed the murders by lying in wait, he. intentionally committed more than one murder, and he intentionally committed murder while committing the crime of burglary. See Ind.Code § 35-50-2 — 9(b); 16 TR 4998 (defense argument at penalty phase). The defense sought to show that several mitigating factors were present in Fleenor’s case. It is a mitigating factor under Indiana law that the defendant was “under the influence of extreme mental or emotional disturbance when he committed the murder.” It is also a mitigating factor that “the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.” Indiana law also allows the jury to consider any other circumstances appropriate for mitigation. See Ind.Code § 35-50-2-9(c). Fleenor argues that in handling the mitigation evidence and arguments, his lawyers failed to provide the effective assistance of counsel required by the Sixth Amendment to the United States Constitution at the penalty phase of the trial. Two lawyers represented Fleenor before and during his trial — Ted Todd of Jefferson County and Larry Combs of Johnson County. Both were skilled and experienced trial lawyers. Todd had been practicing law for 18 years and Combs had been practicing for about ten years. Both had represented defendants in several murder cases before, including one murder case in which the two had worked together as the defense team, but neither Todd nor Combs had tried a death penalty case before this one. Todd testified at the post-conviction hearing that he had spent more than 500 hours on the ease and that Combs had spent close to the same amount. Todd’s testimony also shows, as is evident from the trial transcript, that he and Combs thoughtfully evaluated their trial strategy in an effort to save Fleenor’s life if they could. They did not try to deny that Fleenor shot and killed Bill Harlow and Nyla Jean Harlow. They did try to give the jury evidence as to why he might have done so, and they argued passionately and eloquently against imposing the death penalty. A. The Evidence Presented to the Jury Upon motion of the prosecution the court accepted for the record of the penalty phase all of the evidence from the guilt-innocence phase. The prosecution presented no additional penalty evidence of its own. Fleenor’s trial lawyers presented evidence to build on their efforts in the guilt-innocence phase to show that Fleenor was not of a normal mind, that the murders were the product, at least in part, of mental illness, extreme mental or emotional disturbance, and/or the effects of alcohol. They also presented evidence of Fleenor’s limited intelligence and troubled childhood. The evidence from the guilt-innocence phase of the trial included the testimony from Fleenor himself. It also included two court-appointed psychiatrists, Dr. Gordon Brown and Dr. Fitzgerald, who testified that Fleenor was not legally insane but was suffering from a recognized personality disorder. The testimony included testimony from a psychologist selected by defense counsel, Dr. Paul Campbell, cpncerning his diagnosis of Fleenor as having antisocial personality disorder and borderline personality disorder, his suggestion of the possibility that the murders occurred as part of a “transient psychotic episode” occasioned by emotional stress, as well as the possibility that Fleenor had some organic brain damage. 14 TR 4325-72. The additional defense evidence in the penalty phase included testimony from two clergymen, one of whom had known Flee-nor for years, about Fleenor’s background, his remorse, and his prospects for life in prison. Dr. Robert Keller, then a member of the State Board of Correction with a doctorate in sociology and special training and experience in counseling alcoholics, testified about the effects of long term abuse of alcohol upon the mind. Sandra Sedam — Fleenor’s ex-wife and the daughter of the Harlows — also testified that she thought Fleenor was under extreme mental or emotional disturbance when he murdered her parents in front of her and the children. She testified about the effects of alcohol on Fleenor. She testified that she did not want him to die for his crime. She also testified that she believed that the death penalty would be contrary to her murdered parents’ religious beliefs. Flee-nor’s brother-in-law testified about Flee-nor’s kindness toward children and his background, as well as the effects of alcohol upon him. Fleenor’s mother testified about the effects of alcohol upon him, and she begged the jury not to kill her son. During the presentation of the mitigation evidence, however, the prosecution used its opportunities for cross-examination to undermine the weight of that evidence and to emphasize facts that tended to support imposition of the death penalty. In rebutting the defense reliance on the effects of alcohol, the prosecution pointed out in cross-examination that on the day of the murders, Fleenor had had only three or four beers and part of a marijuana joint, and that he had not appeared intoxicated in earlier encounters with Sandra Sedam and Nyla Jean Harlow, with his friends, or at the Harlows’ church. The prosecution also pointed out during cross-examination of Sandra Sedam that the shot that killed Nyla Jean Harlow was an accurate pistol shot from across the room into the top of her head as she knelt over the wounded Bill Harlow. The prosecution also pointed out through Sandra Sedam’s testimony that Fleenor retained the ability, to plan his escape from Indiana using Sandra and her family as hostages. See 15 TR 4714-17. In cross-examining both clergymen, the prosecution reminded the jury that Dr. Gordon Brown had expressed the opinion that, if given the chance in the future, Fleenor would “continue to involve himself in similar behavior in the future.” (That cross-examination is the subject of Part VIH, below.) In cross-examining Father Duff Green, who had praised Fleenor’s concern for Sandra’s son Justin, the prosecution reminded the jury that Fleenor himself had threatened to kill Justin the night of the murders. 16 TR 4757. In cross-examining Sandra and Fleenor’s brother-in-law Earl Lacy, the prosecution also reminded the jury that Fleenor had tried to escape from the Jefferson County jail and had told his girlfriend that he was ready to kill the police dispatcher if necessary to accomplish the escape. 16 TR 4758, 4931. The trial court allowed the defense to put on evidence through Dr. Keller that the death penalty does not have a deterrent effect generally in society. The prosecution used its cross-examination, however, to point out that Fleenor himself had not been aware that he might be subject to the death penalty, and that he had told a friend the night before the murders that he would be spending the rest of his life in prison. In closing arguments, the prosecution used this evidence to argue that Fleenor had tried to make his own “plea bargain” before he committed the murders: he had decided to kill and he expected a life sentence in return. Then, when he learned after his arrest that he might be subject to the death penalty, he plotted an escape from the jail even if it might require an additional murder. This evidence about Fleenor in particular was obviously relevant in response to the defense argument against any more general deterrent effect from the death penalty. It also weighed against the argument that he acted under the influence of extreme emotional or mental disturbance. During the cross-examination of Dr. Keller after the jury’s questions had been asked, the prosecution also reminded the jury that an EEG of Fleenor had been normal. 16 TR 4911. B. The Additional Evidence Offered After Trial In the state post-conviction relief proceeding and in this court, Fleenor has identified additional evidence that he contends would have supported his arguments for mitigation. He argues that his trial counsel were ineffective for purposes of the Sixth Amendment because they failed to pursue and present the additional evidence. First, Fleenor contends that his trial counsel should have cross-examined the two court-appointed psychiatrists at trial, Dr. Gordon Brown and Dr. Joseph Fitzgerald, about the presence of evidence of extreme mental and emotional disturbance and about the fact that they did not examine Fleenor for brain damage. See PC 1286-1328 (Brown); PC 1343-62 (Fitzgerald). Second, Fleenor offered at the post-conviction hearing testimony from Dr. James E. Dugas, Ph.D., an expert in psychopharmacology, to testify about the effects of drugs on thinking and behavior and how drug and alcohol abuse could cause Fleenor to suffer blackouts and toxic psychosis. See PC 1672-1721. Fleenor argues that this testimony would have been more appropriate on these issues than the testimony of Dr. Keller. Third, Fleenor argues that his lawyers should have presented the testimony of Dr. Stewart “to explain and challenge Dr. Brown’s and Dr. Fitzgerald’s testimony that Petitioner simply had an antisocial personality disorder.” See PC 1590-1671. Fourth, Fleenor argues that his lawyers should have more thoroughly investigated evidence of his “traumatic childhood,” especially with testimony corroborating Fleenor’s own testimony. Fleenor now contends this evidence should have included testimony from his aunt, who saw Flee-nor as a toddler whipped by his stepfather for no apparent reason; from another family member who saw Fleenor as an eight year old whipped by his stepfather with a belt; and from two other witnesses about Fleenor’s treatment by his family and his troubled relationship with his father. Fifth, Fleenor argues that his lawyers should have presented testimony about his difficulties in school, including the lack of psychological evaluations and special education programs in the school. Sixth, Fleenor argues that his lawyers should have obtained and offered testimony from a neuropsychologist and/or a neurologist to show frontal lobe brain damage that resulted in “disinhibition or poor impulse control in addition to neurocognitive deficits and dysfunction that impaired Petitioner’s reason, judgment and problem solving ability.” In support of this sixth point, Fleenor relies on evidence not presented to the state courts in the post-conviction proceeding. This evidence is set forth in Exhibits D, E, F, and G attached to Fleenor’s petition for a writ of habeas corpus, and requires separate treatment below. C. The Constitutional Test for Effective Assistance of Counsel The controlling legal standards for effectiveness of counsel were set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court said: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. at 687, 104 S.Ct. 2052. Under the first prong of this test, the Court in Strickland adopted an objective standard of “reasonableness under prevailing professional norms” for counsel’s performance. Id. at 688, 104 S.Ct. 2052. The Court declined to be more specific or to lay out a checklist for such inquiries. The Court stressed, however, that judicial scrutiny of counsel’s performance must be “highly deferential,” and it warned against the temptation to second-guess counsel’s performance after an unsuccessful result. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Id. at 689, 104 S.Ct. 2052. The focus must be on the attorney’s role in the adversarial process that is central to confidence in the fairness and reliability of the judicial process. As applied to the penalty phase of a capital trial, the Seventh Circuit has explained that this standard means: Viewing the performance of counsel solely from the perspective of strategic competence, we hold that defense corn- sel must make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant’s fate to the jury and to focus the attention of the jury on any mitigating factors. Mitigating factors brought out at trial might be emphasized, a coherent plea for mercy might be given, or new evidence in mitigation might be presented. But counsel may not treat the sentencing phase as nothing more than a mere postscript to the trial. While the Strickland threshold of professional competence is admittedly low, the defendant’s life hangs in the balance at a capital sentencing hearing. Indeed, in some cases, this may be the stage of the proceedings where counsel can do his or her client the most good. Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.1989) (emphasis added) (holding counsel’s performance was ineffective where counsel failed to present any evidence in mitigation and offered a rambling and incoherent argument “that cannot, even charitably, be called a plea for mercy”). What does the general statement about counsel’s duty at sentencing — “a significant effort, based on reasonable investigation and logical argument” — mean with respect to possible evidence of mental illness or related problems? The Seventh Circuit addressed the problem but did not try to resolve it in Stewart v. Gramley, 74 F.3d 132, 135 (7th Cir.1996). The court commented: Presumably the lawyer is not required to investigate the defendant’s past with the thoroughness of a biographer. The resources of defense lawyers are limited and they have only a short time to prepare for the sentencing hearing. Sometimes it will be apparent from the evidence concerning the circumstances of the crime, from conversation with the defendant, or from other sources of information not requiring fresh investigation, that the defendant has some mental or other condition that will repay further investigation, and then the failure to investigate will be ineffective assistance. Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir.1991); Antwine v. Delo, 54 F.3d 1357, 1365-68 (8th Cir.1995). In other cases, where these indications are lacking, counsel may “reasonably surmise from his conversations with [the defendant] that character and psychological evidence would be of little help.” Strickland v. Washington, supra, 466 U.S. at 698, 104 S.Ct. 2052; see also Waters v. Thomas, 46 F.3d 1506, 1510-18 (11th Cir.1995) (en banc); Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir.1994); Francis v. Dugger, 908 F.2d 696, 703 (11th Cir.1990). 74 F.3d at 135. The Stewart court did not try to answer the question definitively because any supposed failure to investigate more thoroughly in that case was not prejudicial to the defendant. Id. at 136-37. Other cases involving asserted failures to provide effective assistance with respect to possible mitigating evidence of a defendant’s mental illness or brain damage provide more specific guideposts for resolving the question here. In Eddmonds v. Peters, 93 F.3d 1307 (7th Cir.1996), two judges concluded that defense counsel had failed to provide effective assistance at sentencing by failing to pursue and present evidence of the defendant’s long history of mental and psychiatric problems. (All three judges concluded, however, that any failure was not prejudicial under the second prong of Strickland. See 93 F.3d at 1323 (Flaum, J., and Rovner, J., concurring).) The defendant in Eddmonds had been examined more than ten times before trial to determine his competency to stand trial, and the earliest examinations had concluded that he was not competent. Four of the psychiatric reports diagnosed some form of schizophrenia while others diagnosed borderline and antisocial personality disorders with depressive features. Defense counsel also possessed evidence of an earlier diagnosis of schizophrenia and a three month stay in a psychiatric hospital, as well as attempted suicides and self-mutilation. Judge Flaum wrote: Thus even a cursory review of Edd-monds’ file would have revealed longstanding, complex, and often severe mental problems. Such a well-documented mental health history would undoubtedly alert the committed attorney to the existence of possible mitigation evidence and clearly invoke the duty of reasonable investigation. We and other circuits have found a duty to inquire further with much less abundant and consistent documentation of mental illness. See, e.g., Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir.1991); Antwine v. Delo, 54 F.3d 1357, 1367 (8th Cir.1995); Hill v. Lockhart, 28 F.3d 832, 845 (8th Cir.1994); Stephens v. Kemp, 846 F.2d 642, 652-53 (11th Cir.1988). 93 F.3d at 1324 (Flaum, J., concurring). The defense counsel who had this information could not recall taking any investigative steps before the penalty hearing. He did not ask any mental health expert to examine Eddmonds, nor did he ask those who had already examined him to evaluate him for purposes of the penalty hearing. He did ask one psychiatrist to testify, but he did nothing to prepare the psychiatrist for testimony (by providing, for example, more recent reports by other experts). After that psychiatrist was severely undermined on cross-examination, counsel failed to use available materials to support and rehabilitate his testimony. 93 F.3d at 1326-27. The two concurring judges found that counsel’s failure to investigate the available psychiatric evidence and to present what little he did have in an effective way fell short of the Strickland standard for effectiveness as applied to the case. Id. The fact that two psychiatrists had determined that Eddmonds was sane did not make the lawyer’s performance more acceptable because of the different standards applicable to the insanity defense and mitigation at sentencin