Full opinion text
AMENDED DECISION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW; and ORDER GRANTING WRIT OF HABEAS CORPUS BRYAN, District Judge. INDEX TO DECISION Introduction. 1247 Factual and Procedural Background. 1248 Issues Presented . 1251 Standard of Review. 1252 Discussion of Issues. 1253 ISSUE 1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal 1253 The Standard for Effective Assistance of Counsel. 1253 1. Deficiency of Performance. 1254 2. Prejudice to Defense. 1254 Ground A. Counsel did not conduct a thorough investigation of facts surrounding the charge and possible defenses. 1255 Counsel failed to adequately prepare for trial. 1255 Ground B. Counsel failed to adequately consult with his client and to inform him on important issues and decisions regarding his defense. 1258 Ground C. Counsel failed to investigate Harris’s mental and emotional status, including mental capacity and incompetence to stand trial. 1259 Ground D. Ground E. Counsel failed to challenge admissibility of Harris’s Statements . 1261 Ground F. Counsel failed to properly protect Harris’s rights when the October 22, 1984 statement was made and admitted at trial, and during Harris’s testimony during the guilt phase ... 1261 Ground G. Counsel should have attempted to mitigate with prosecutor before the prosecutor decided to seek the death penalty 1264 Ground H. Counsel failed to conduct proper voir dire. 1264 Ground I. Counsel failed to object to inadmissible evidence. 1265 Ground J. Counsel failed to develop a viable defense strategy. 1265 Ground K. Counsel failed to propose, or except to, jury instructions .. 1266 Ground L. Counsel failed to object to improper comments by prosecutor during closing arguments in penalty phase. 1267 Ground M. Counsel’s closing argument in the guilt phase was deficient 1267 Ground N. Counsel failed to present available evidence during penalty phase. 1268 Ground O. Counsel failed to raise or preserve meritorious issues in appellate proceedings. 1271 Ground P. Counsel failed to advise Harris of a conflict of interest.... 1271 ISSUE NO. 2. Whether the admission of prior convictions in 1969 for manslaughter and assault during the penalty phase violated petitioner’s right to due process. 1274 ISSUE NO. 3. Whether Washington’s capital punishment statute is unconstitutional because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase. 1277 ISSUE NO. 4. Whether petitioner’s incompetency prevented a fair trial. 1278 ISSUE NO. 5. Whether the state failed to disclose exculpatory evidence. 1280 ISSUE NO. 6. Whether Harris’s constitutional rights were violated when his pretrial statement of October 22,1984 was made and admitted at trial 1281 ISSUE NO. 6a. Whether Harris properly waived his Fifth Amendment right to remain silent. 1282 ISSUE NO. 7. Whether Harris’s Fifth Amendment right against self incrimination was violated by the admission, at trial, of statements made by Harris to police during the investigation. 1283 ISSUE NO. 8. Whether the prosecutor’s decision to seek the death penalty denied Hams due process, equal protection, and was cruel and unusual punishment. 1284 ISSUE NO. 9. Whether, during closing arguments in the penalty phase, the prosecutor committed error by attempting to minimize the jury’s sense of responsibility for punishment. 1285 ISSUE NO. 11. Whether the Washington State Supreme Court performed an inadequate proportionality review, thereby violating petitioner’s due process rights. 1286 ISSUE NO. 16. Whether there is any constitutional infirmity resulting from the disparity of Harris’s death sentence and his co-defendant’s acquittal . 1291 ISSUE NO. 17. Whether the inconsistent verdicts are unconstitutional. 1292 ISSUE NO. 18. Whether Jury Instructions No. 2 and 5, given during the penalty phase, erroneously encouraged the jury to reach a unanimous verdict on all issues. 1292 ISSUE NO. 19. Whether death by hanging is unconstitutional as cruel and unusual punishment. 1293 ISSUE NO. 20. Whether the requirement that petitioner choose between methods of execution is unconstitutional as cruel and unusual punishment 1293 CONCLUSION 1293 LEGEND I. STATE COURT RECORD Yol.. “Volume” CP. .“Clerk’s Papers” VRP.. ‘Verbatim Report of Proceedings” Plaintiffs Ex. ..“State Trial Exhibits” II. U.S. DISTRICT COURT RECORD Evid.TR..“Testimony of Murray Anderson” Parkhurst Evid.TR..“Testimony of Sgt. Parkhurst” Stip. Facts No...“Stipulation of Facts, Appendix A.” Cease Dep. ..“Deposition of Richard Cease” Haist Dep... “Deposition of Thomas Haist” THIS MATTER comes before the court on Benjamin A. Harris’s Petition for Writ of Habeas Corpus. The court has considered all pleadings filed in support of and in response to the petition, the evidence adduced at an evidentiary hearing held on Monday, December 20, 1993, including the depositions of Thomas Haist, Richard Cease, John Pet-rich, M.D. and Allen W. Traywick, Ph.D. The court heard oral arguments of counsel at that hearing and at prior hearings on motions. The court also considered the state court record filed herein, Volumes 1 to 12, trial exhibits, and the U.S. District Court file. The parties entered into a Stipulation of Facts with accompanying documents, filed on October 25, 1993, which is fully incorporated herein by this reference. The Stipulation is attached hereto as Appendix A. INTRODUCTION This is not a search for legal technicalities. It is not a search for justification to take, or save, a life. It is not a case about the legal, moral, or social implications of the death penalty. It is not a review of a state case for simple legal error. Neither the question of Harris’s guilt nor the advisability of a death sentence will be reexamined here. This is a review of a state proceeding to determine if federal constitutional requirements were met, and to determine the affect of any constitutional violations on the state proceedings. It is appropriate, under the law, to undertake this procedural review for any person who has lost freedom as a result of a criminal conviction in any court in the United States. Even if petitioner is guilty in fact, and even if he should be put to death, American law says that such a conviction and sentence will not stand unless, and until, the conviction and sentence are determined to be in accord with the U.S. Constitution. The writ of habeas corpus was first written into English law in 1679, although it existed informally before that time. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d, Sec. 4261 at 271 (citations omitted). The writ may be sought in any situation where an individual challenges another’s authority to restrain his or her liberty. Commonly referred to as “The Great Writ,” it has been declared “both the symbol and guardian of individual liberty.” Peyton v. Rowe, 391 U.S. 54, 58, 88 S.Ct. 1549, 1551, 20 L.Ed.2d 426 (1968) (citations omitted). Modern federal procedure for a writ of habeas corpus is codified in 28 U.S.C. Sec. 2241, et seq. As a result of its development in American law, the writ has three primary characteristics: First, it is largely used to provide post-conviction relief. Second, it requires “prompt adjudication of the validity of the challenged restraint.” Peyton, 391 U.S. at 59, 88 S.Ct. at 1552 (citations omitted). Third, the federal courts are authorized to look behind the state court record, and may conduct a fact finding hearing to determine the merits of alleged constitutional violations. Id. (citations omitted). Legal scholars have long debated the merits of a procedure whereby a federal court can examine into a state court system’s adjudication of an individual’s crimes and sentence: Support for broad federal habeas review stems from our devotion to individual justice, the symbolic value of the writ as the hallmark of democracy under law, the safety-valve effect of providing an additional forum for testing constitutional claims as well as a belief that the federal judiciary is often in the best position to further these interests. Arguments against broad application of the writ include its tendency to foster inefficient, repetitive judicial consideration of the same issue. The writ’s interference with finality in the criminal process together with the lack of comity inherent in federal district court review of the decisions of a state supreme court also weigh against widespread application of the writ. Allen, Schachtman & Wilson, Federal Habe-as Corpus and Its Reform: An Empirical Analysis, 13 Rutgers L.J. 675, 678 (1982). This court does not intend to continue the debate, or to comment on the worthiness of either position. When a person’s life may be taken, an exacting constitutional scrutiny is required. The U.S. Supreme Court has demanded that the review “aspire to a heightened standard of reliability.... This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986). Constitutional provisions at issue in this case include the accused’s right to have the effective assistance of counsel for his defense (Sixth Amendment); the accused’s right to refuse to be a witness against himself (Fifth Amendment); the accused’s right to a fair trial and to due process of law (Fifth and Fourteenth Amendment); the accused’s right to equal protection of the laws (Fourteenth Amendment); and the accused’s right to be free from the infliction of cruel and unusual punishment (Eighth Amendment). FACTUAL AND PROCEDURAL BACKGROUND A. Trial Court History This statement summarizes the historical facts and events in this case to the present. It is not intended to be an exhaustive statement of all significant facts but sets the stage for more detailed fact-finding and discussion. In the early morning hours of June 14, 1984, the body of Jimmie Lee Turner was found outside 2134 South Hosmer, Tacoma, Pierce County, Washington. Vol. 3, CP 978. An information filed on July 27,1984 charged Gregory Lee Bonds with aggravated murder in the first degree. Vol. 3, CP 979. Benjamin Harris was arrested as a material witness on July 30, 1984. Vol. 3, CP 984, 989. He was released on his personal recognizance after administrative booking and was ordered to make daily contact with Tacoma Police Officers Antonson or Parkhurst. Vol. 3, CP 989. Harris was taken to the Calico Cat Motel by Tacoma Police officers for security. Vol. 3, RP 30. Harris took two polygraph examinations given by agents of the Tacoma Police Department, on August 7, 1984 and on August 8,1984. Vol. 2, VRP 31. Harris was arrested immediately following the second polygraph examination. Vol. 1, VRP 32. On August 10, 1984 Benjamin Harris appeared in court and an amended information was filed, charging Harris and Bonds with aggravated murder in the first degree. Vol 1, CP 1013-14. Counsel was appointed to represent Harris on August 13,1984. Vol. 3, CP 1018. On August 16, 1984, the Prosecuting Attorney filed a Notice of Special Sentencing Proceeding to Determine Whether the Death Penalty Should be Imposed on Harris. Vol. 3, CP 1019. The Prosecuting Attorney noted in this document that “Presentation of mitigating circumstances is the responsibility of the defendant. See State v. Bartholomew, 101 Wash.2d 631, 643, 683 P.2d 1079 (1984). No mitigating circumstances have been brought to the attention of this office.” Vol. 3, CP 1020. A duplicate, but separate, notice was also filed for Bonds. Trial for both defendants was set for September 24, 1984. On August 28, 1984, counsel for Bonds filed a motion for severance. Vol. 3, CP 1042-49. Harris joined in that motion. Vol. 3, CP 1058-60. At the same time, the state filed a motion to set aside a trial continuance that had been obtained by counsel for Bonds. (The trial date for Bonds had been continued to November 12, 1984.) On September 26, 1984, the trial court denied the state’s motion to set aside Bonds’ continuance and granted the defendants’ motion for severance. Vol. 3, CP 1125-27. Harris’s trial was continued to October 15, 1984. Vol. 3, CP 1083. A hearing was held on September 20,1984 pursuant to Washington Superior Court Criminal Rule 3.5 (commonly referred to as a “CrR 3.5 hearing”). The hearing was to determine the admissibility of oral statements made by Harris before his arrest, and statements in letters he sent to Sgt. Park-hurst of the Tacoma Police Department after his arrest. The court orally ruled that all statements, oral and written, which were the subject of the hearing, were voluntary and admissible at trial. Vol. 3, CP 1088. Formal findings of fact and conclusions of law were entered on October 18,1984, four days before trial. Vol. 3, CP 1169-73. Therein, trial court formally ruled that all statements made by Harris were freely and voluntarily made, that when the investigation focused on Harris, he was properly advised of his Miranda rights, and that all letters sent by Harris to Sgt. Parkhurst before and after- his arrest were voluntary and unsolicited by Parkhurst. The court further ruled that all statements and letters were admissible at trial. Vol. 3, CP 1173. On September 28, 1984, Harris’s counsel filed a motion for a mental examination of Harris, with a supporting affidavit and memorandum of authorities. U.S.D.C., Ex. 1; Vol. 3, CP 1133-41. Counsel’s affidavit de-tañed extensive difficulties in communicating with Harris, and significant concern regarding his ability to assist in his defense. The motion was granted. Vol. 3, CP 1145-46. The court appointed qualified members of the staff of Western State Hospital to examine and diagnose Harris’s mental condition and to report to the court as specified in RCW 10.77.060. The report was to contain an opinion as to Harris’s capacity to understand the proceedings against him and to assist in his defense, whether he perceived the moral qualities of the acts with which he was charged, and whether further examination and testing was required. Id. This was not an independent defense examination. Harris was transferred to Western State Hospital for the examination. On October 8, 1984, Harris was returned to the Pierce County Jaü and the results of examining team at Western State Hospital were disclosed. Vol. 3, CP 1158-59. A letter opinion was filed in the trial record and stated that the defendant was competent to stand trial, was able to assist in his defense, was aware of the charges against him, was able to perceive the nature and quality of his act at the time of the alleged offense, and did not require future testing or evaluation. Vol. 3, CP 1159. The opinion did not address diminished capacity, general mental and emotional status, nor other matters that could have assisted counsel in defending a capital case. Counsel learned after the guilt phase but before the penalty phase that some of the testing done was not scored and was not included in the opinion. Vol. 3, CP 1196-98. On October 11, 1984, Harris’s counsel filed a motion for continuance of the trial and for examination of the defendant by his own expert. Vol. 3, CP 1162-63. On October 17, 1984, an order was entered granting a trial continuance from October 15, 1984, to October 22, 1984. In the order, the court found that Harris’s counsel was engaged in another ongoing criminal trial and that the defendant desired to be evaluated by an expert of his own choosing. Vol. 3, CP 1167-68. The court record does not reflect any further order regarding evaluation of Harris by his own expert. The issue of funding was not raised by defense counsel. Harris was not examined by the independent expert before trial. On the morning of October 22, 1984, the day set for trial, Harris, at the suggestion and recommendation of counsel, met with prosecuting attorneys and police officers. Evid.TR 20-21. Harris was accompanied by his counsel, and gave a recorded, detaüed statement of his version of the events, including an admission that he fired one of the two fatal shots at Turner. Vol. 1, VRP 69-92; Plaintiffs Trial Ex. 14. Trial began in the afternoon of October 22, 1984 and continued to the morning of October 26, 1984. A verdict of guñty to the charge of aggravated murder in the first degree was entered by the jury in the afternoon of the same day. Vol. 3, CP 1178. The penalty phase was scheduled to begin on the morning of October 31, 1984. The penalty phase was held on October 31, 1984, lasting from 9:40 a.m. to 11:02 a.m. Vol. 3, CP 1195. The jury returned with its verdict, finding “no sufficient mitigating circumstances to merit leniency” in the afternoon of the same day. Vol. 3, CP 1190,1195. Sentencing was set for November 5, 1984. Harris filed a motion in arrest of judgment or, in the alternative, for a new trial on November 5, 1984. Vol. 3, CP 1196-98. Sentencing was continued to November 19, 1984. Vol. 3, CP 1199. The motion for a new trial focused on the fact that, because certain diagnostic data was not scored by the evaluators at Western State Hospital, Harris’s mental examination was incomplete. The defendant argued that this data may have contained relevant information on Harris’s competency to stand trial and on mitigating factors regarding his mental state when the crime was committed. Vol. 3, CP 1196-98. The- deposition of Dr. Kathleen Mayers was ordered and the hearing on the motion was set over to December 10, 1984. Vol. 4, CP 1507. An order was entered requiring the defendant to make an offer of proof regarding evidence of a mental disturbance before the December 10th hearing. The order also granted defendant’s request to authorize Dr. Allen W. Traywick and Dr. Mayers access to the Pierce County Jail for further testing and evaluation of Harris. Vol. 4, CP 1517-18. On November 13, 1984, Bonds’ trial began, starting with pretrial motions. Vol. 4, CP 1533. On November 26, 1984, Harris testified for the state. The record does not reflect that any accommodations were offered to Harris in exchange for his testimony. The jury returned a verdict of not guilty on December 6, 1984. Vol. 4, CP 1564-65. The hearing on Harris’s motion for a new trial was again continued to December 26, 1984, due to scheduling conflicts. Vol. 4, CP 1571-72. The hearing was then again set over to January 9, 1985, to allow preparation of the deposition transcript of Dr. Traywick. Vol. 4, CP 1576. After hearing, the motion was denied and formal Findings of Fact and Conclusions of Law were entered on January 21, 1985. Vol. 4, CP 1662-67. The court found that the defendant had the opportunity to obtain his own psychological expert to evaluate his mental condition before trial and failed to do so. The court further found that the testimony of Ray Meeks was the essentially the same in both the Harris and the Bonds trials, and the acquittal of Bonds had no relevance to the Harris case. Id. Judgment and Sentence of death was entered on January 14, 1985. Vol. 4, CP 1578-80. The trial judge, as required by RCW 10.95.120, completed and filed the “Report of the Trial Judge” on January 15, 1985. Vol. 4, CP 1648-60. B. Appellate History A Notice of Appeal to the Washington Supreme Court was filed on February 11, 1985. Vol. 4, CP 1670. Trial counsel was appointed for the appeal. Vol. 4, CP 1679. In a published opinion, State v. Harris, 106 Wash.2d 784, 725 P.2d 975 (1986), the Washington Supreme Court affirmed the conviction and the death sentence. The opinion included the mandatory death sentence review required by RCW 10.95.100. 106 Wash.2d at 789, 797-99, 725 P.2d 975. The first death warrant was entered on December 15,1986. Vol. 5, CP 1917. New counsel was appointed for Harris on February 23, 1987, Vol. 6, CP 2264. A petition for writ of certiorari was filed in the U.S. Supreme Court Vol. 6, CP 2267-2304 and was denied by that court on March 23,1987. Vol. 6, CP 2305. Harris filed his first state personal restraint petition in the Washington Supreme Court on September 7, 1987, raising numerous issues. Vol. 7, CP 2332-2690. His petition was denied in In re Harris, 111 Wash.2d 691, 763 P.2d 823 (1988). Vol. 8, CP 3022-49. Harris filed a second state personal restraint petition on December 2, 1988, attacking the constitutional validity of his guilty plea to the 1969 manslaughter charge. On December 8, 1988, counsel for Harris filed a motion to stay further proceedings pending determination of competency and for appointment of a mental health professional to examine Harris. Vol. 8, CP 3069-76. The Washington Supreme Court issued an order on March 8, 1989, inter alia, denying the motion for stay, authorizing the appointment of a mental health professional, and denying the second personal restraint petition without prejudice. Vol. 8, CP 3089-90. A second petition for writ of certiorari was filed in the U.S. Supreme Court and was denied on May 15, 1989. Vol. 8, CP 3098. Harris refiled his second state personal restraint petition [third petition in chronological order], raising the identical issues, on May 19, 1989. Vol. 11, CP 3996-4008. The Washington Supreme Court denied the petition with prejudice on May 10,1990. Vol. 11, CP 4024-25. Petitioner’s motion for reconsideration was denied by the court on June 7, 1990. Vol. 11, CP 4103-04. On May 30,1989, a hearing was held in the trial court to set a date for execution, and to determine if Harris was competent to be executed. Vol. 9, VRP 3151-3233. Harris presented evidence and argument that he was not competent to be executed. At the conclusion of the hearing, the court found the defendant competent to be executed and an execution date was set for July 11, 1989. Vol. 9, VRP 3231-32. The death warrant was entered on May 30, 1989. Vol. 9, CP 3287. Notice of appeal to the Washington Supreme Court was filed on June 2, 1989. Vol. 9, CP 3286. On June 15, 1989, oral argument was heard by the trial court on Harris’s motion to vacate the order setting execution date. Vol. 9, CP 3234-83. The motion was denied at the conclusion of the hearing. Vol. 9, CP 3282. Harris filed a motion for stay of execution pending appeal/personal restraint petition and petition for discretionary review on June 20,1989. Vol. 9, CP 3295-3374. On June 30, 1989, the Washington Supreme Court granted the petition for discretionary review and set the matter for oral argument on September 26, 1989. Vol. 9, CP 3439-41. Along with the appeal, counsel for Harris filed a third state personal restraint petition [fourth petition in chronological order] to the Washington Supreme Court on July 24,1989. Vol. 10, CP 3446-3521. This petition attacked the validity of the competency hearing held in the trial court oh May 30, 1989.. The Supreme Court denied the petition and appeal in a published opinion, State v. Harris, 114 Wash.2d 419, 789 P.2d 60 (1990). Vol. 10, CP 3953-92. Harris filed a fourth state personal restraint petition [fifth petition in chronological order], raising an issue of improper jury instructions in the sentencing phase, pursuant to Mak v. Blodgett, 970 F.2d 614 (9th Cir.1992). Vol. 12, CP 4105-35. In an unpublished order, the Washington Supreme Court denied that petition on March 16,1993, as an abuse of the writ. Vol. 12, CP 4180-84. On March 16, 1993, petitioner’s state remedies were thoroughly exhausted. C. Federal Court History On June 13, 1989, Harris filed a petition for writ of habeas corpus, a motion for stay of execution, and other administrative motions in United States District Court for the Western District of Washington. The matter was assigned to the undersigned judge. Oral argument on the motion for stay of execution was heard on June 22, 1989. The court orally granted the motion for stay. A written order of stay was entered on July 6,1989, delaying further federal proceedings until final resolution of the third state personal restraint petition/appeal pending before the Washington Supreme Court. In July, 1990, the court was advised by Harris’s counsel that he was concerned that Harris could not understand, and assist with, the federal habeas corpus proceedings because of his mental condition. After consideration of memoranda from both parties on the issue of competency, the court granted petitioner’s motion for appointment of an expert and ordered an evidentiary hearing. The hearing was held on September 20,1990. Findings of Fact and Conclusions of Law were entered on November 21, 1990, determining that Harris was not competent to litigate his habeas petition without assistance. A Guardian ad Litem was appointed for Harris. These proceedings were again stayed on August 24, 1992 to allow the Washington Supreme Court the opportunity to consider petitioner’s fourth state personal restraint petition. Proceedings in this court resumed following the final exhaustion of Harris’s state remedies by the decision of the Washington Supreme Court on March 16, 1993. ISSUES PRESENTED Harris’s petition for habeas corpus presents the following issues: 1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal. 2. Whether the admission of Harris’s 1969 convictions for manslaughter and assault during the penalty phase violated his constitutional right to due process. 3. Whether Washington’s capital punishment statute is unconstitutionally defective because it allows consideration of an unconstitutionally obtained prior conviction during the penalty phase. 4. Whether Harris’s incompetency prevented a fair trial. 5. Whether the state failed to disclose exculpatory evidence to defense counsel. 6. Whether Harris’s constitutional rights were violated when his pretrial statement of October 22, 1984 was made, and when it was admitted at trial. 6a. Whether Harris properly waived his Fifth Amendment protection against self incrimination during the guilt phase. 7. Whether Harris’s Fifth Amendment right against self incrimination was violated by the admission, during the guilt phase, of statements made by Harris to police during the investigation. 8. Whether the state’s decision to seek the death penalty denied Harris due process and equal protection, and constituted cruel and unusual punishment. 9. Whether, during closing arguments in the guilt phase, the prosecutor committed error by attempting to minimize the jury’s sense of responsibility for Harris’s punishment. 11. Whether the Washington Supreme Court performed an inadequate proportionality review, thereby violating Harris’s due process rights. 16. Whether there is any constitutional infirmity resulting from the disparity of Harris’s death sentence and his co-defendant’s acquittal. 17. Whether the inconsistent verdicts are unconstitutional. 18. Whether Jury Instructions No. 2 and 5, given during the penalty phase, erroneously encouraged the jury to reach a unanimous verdict on all issues. 19. Whether death by hanging is unconstitutional as cruel and unusual punishment. 20. Whether the requirement that Harris choose between methods of execution is unconstitutional as cruel and unusual punishment. STANDARD OF REVIEW General Standard for Federal Review of State Court Proceedings Habeas corpus relief is available to “persons whom society has grievously wronged and for whom belated liberation is little enough compensation.” Fay v. Noia, 372 U.S. 391, 441, 83 S.Ct. 822, 850, 9 L.Ed.2d 837 (1963). For petitioners, such as Harris, who are in custody pursuant to a state court judgment of conviction, a writ of habeas corpus may be granted by a federal court if the petitioner can show “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. Sec. 2254(a). The court is directed to “dispose of the matter as law and justice require.” 28 U.S.C. See. 2243. A petitioner is entitled to habeas relief if unconstitutional trial error is found to have “had substantial and injurious effect or influence in determining the jury’s verdict ... and resulted in ‘actual prejudice’.” Brecht v. Abrahamson, — U.S.-, 113 S.Ct. 1710, 1712, 123 L.Ed.2d 353, 373 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986)). Other unconstitutional errors are found “in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” “The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal because they infect the entire trial process.” Brecht, Id. at 367, 113 S.Ct. at 1717 (quoting Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Before coming to federal court, the petitioner is required to exhaust all remedies available in the state courts by raising all issues which support his contention that he is in custody illegally. 28 U.S.C. Sec. 2254(b) and (c). Harris has exhausted his state remedies on all issues. In fact, this proceeding has been much delayed while he did so. Findings of fact, made by either the state trial court or state appellate court after a full, fair, and adequate hearing, are presumed to be correct and are binding on the federal court. 28 U.S.C. Sec. 2254(d). Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981). Factual findings may be determined in federal court, or may be set aside in federal court, in certain circumstances enumerated in 28 U.S.C. Sec. 2254(d). Several of those circumstances are applicable in this case. In pertinent part, the statute states as follows: (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the fact finding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concluded that such factual determination is not fairly supported by the record: ... The burden falls on the petitioner to show by convincing evidence that any factual determinations made by the state court are erroneous. 28 U.S.C. Sec. 2254. The statutory presumption of correctness does not apply to purely legal questions or mixed questions of law and fact. Chaney v. Lewis, 801 F.2d 1191, 1194 (9th Cir.1986) (citations omitted); Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (and citations in n. 9). Legal questions and mixed questions of law and fact, including the determination of the legal and/or constitutional effect of factual findings, are entitled to a complete and independent de novo review. Chaney v. Lewis, 801 F.2d at 1194-95 (and cases cited therein); Sumner v. Mata, 455 U.S. at 597, 102 S.Ct. at 1306-07. “In deciding this question [mixed questions of law and fact], the federal court may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard.” Sumner v. Mata, id. See also Reiger v. Christensen, 789 F.2d 1425 (9th Cir.1986). An example of a mixed question of law and fact is the determination of effective assistance of counsel, a major question presented in this case. Reiger v. Christensen, 789 F.2d at 1428; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). DISCUSSION OF ISSUES ISSUE NO. 1. Whether Harris received effective assistance of counsel before trial, during trial, and on post conviction proceedings, including appeal. In his first issue, Harris claims that his counsel’s trial and appellate performance amounted to a denial of his Sixth Amendment right to effective assistance of counsel. He has claimed many deficiencies. They are discussed individually herein as Grounds AP, following an overview of the standard of review. The Standard for Effective Assistance of Counsel The right to effective assistance of counsel is found in the Sixth Amendment to the U.S. Constitution. The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This right was comprehensively discussed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the Strickland case, the U.S. Supreme Court observed that the right to counsel is crucial to a fair trial because “access to counsel’s skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution.” 466 U.S. at 685, 104 S.Ct. at 2063 (citations omitted). Any claim of ineffective assistance must be judged against this benchmark: “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland at 686, 104 S.Ct. at 2064. The court established a two part test to make this determination; to be successful the defendant must sustain his burden of proof on both parts. First, the defendant must show that counsel’s performance was deficient. This required 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 required showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. 466 U.S. at 687, 104 S.Ct. at 2064. 1. Deficiency of Performance To succeed on the first part of the test, referred to as “deficiency of performance” (Mak v. Blodgett, 970 F.2d 614, 618 (9th Cir.1993)), the defendant must show that “counsel’s representation fell below an objective standard of reasonableness ... considering all the circumstances ... under prevailing professional norms.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65; Mak, id. A reviewing court “must be highly deferential” to counsel’s performance; make “every effort ... to eliminate the distorting effects of hindsight,” and must maintain “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ... and might be considered sound trial strategy.” Strickland, id. at 689, 104 S.Ct. at 2065. 2. Prejudice to Defense To succeed on the second part of the test, referred to as the “prejudice to defense” {Mak, 970 F.2d at 619), the petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome.” Id. A reviewing court must evaluate “the totality of the evidence before the judge or jury”. Id. at 695, 104 S.Ct. at 2069. In a capital case, the reviewing court must apply this balancing test: When a defendant challenges a death sentence ... the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id.; Mak, 970 F.2d at 619-20. An objective standard of attorney performance, under prevailing professional norms at the time of this case, can be found in the ABA Standards for Criminal Justice, 2nd ed. (1980). (A third edition was published in 1992 and is not significantly different from the second edition.) The American Bar Association’s (“ABA”) project to establish “desirable or acceptable” standards of practice for criminal justice began in 1963. The overall goal is “to represent a just balance between the goals of effective administration of criminal justice and proper regard for the constitutional rights of the accused and society.” Introduction, at xxix. These standards are regularly used by courts as guidelines in determining whether an attorney’s performance falls below reasonable professional standards. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65; United States v. Blaylock, 20 F.3d 1458 (9th Cir.1994); Jeffries v. Blodgett, 988 F.2d 923, 940 (9th Cir.1993). The ABA’s description of the role of defense counsel is instructive. The basic duty the lawyer for the accused owes to the administration of justice is to serve as the accused’s counselor and advocate with courage, devotion, and to the utmost of his or her learning and ability and according to law. ABA Standard 4—1.1(b). In the commentary, it is stated, “[o]nce a case has been undertaken, a lawyer is obliged not to omit any essential honorable step in the defense, without regard to compensation or the nature of the appointment.” Id. at 4.8. The record reflects that no findings of fact have been made by any state court regarding Harris’s claims of ineffective assistance of counsel. Pursuant to 28 U.S.C. Sec. 2254(d)(1), this court is not bound by a presumption of factual correctness, may consider the evidence, and make factual determinations. Therefore, this discussion of Issue No. 1 contains extensive findings of fact. Fed. R.Civ.P. 52(a). The court has grouped two of Harris’s grounds for his claim of ineffective assistance of counsel into one for ease of discussion. Several general principles apply to Grounds A and B. Ground A. Counsel did not conduct a thorough investigation of facts surrounding the charge and possible defenses. Ground B. Counsel failed to adequately prepare for trial. Harris argues that his counsel did not conduct an adequate or thorough investigation of the facts surrounding the charge against him, including possible defenses. Petitioner contends that counsel did not conduct an independent investigation of the events before, during or after the murder. Petitioner alleges that counsel did not obtain an investigator to discover mitigating facts, an independent ballistics expert to examine the bullets and victim’s wounds, or an expert for a social history evaluation. Harris contends that, as a result of this inadequate trial preparation, counsel had no theory of defense, that he was unprepared for effective cross examination, filed inadequate pretrial motions, and was deficient in conducting both the guilt and penalty phases of the trial. The state generally disputes petitioner’s allegations, and argues that Harris is simply unable to prove them to be true. The state argues that because counsel had known Harris for many years, he was well acquainted with his social and mental history. The state points to various inconsistent statements by Harris himself which complicated counsel’s task in determining a clear trial strategy, other than a general denial. The state concludes that Harris fails to show that he was prejudiced or that the result in the case would have been different if counsel had done more hands-on investigation. The duty to investigate is part of a defendant’s right to reasonably competent counsel. “The principle is so fundamental that the failure to conduct a reasonable pretrial investigation may in itself amount to ineffective assistance of counsel.” United States v. Tucker, 716 F.2d 576, 583 n. 16 (9th Cir.1983) (citing McQueen v. Swenson, 498 F.2d 207, 217-18 (8th Cir.1974)). The ABA states the duty as follows: It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty. ABA Standard 4-4.1. The investigatory process should begin immediately on appearance as counsel for a defendant. ABA Standard 4-3.2(a) states: As soon as practicable the lawyer should seek to determine all relevant facts known to the accused. In so doing, the lawyer should probe for all legally relevant information without seeking to influence the direction of the client’s responses. The commentary to this standard states: An adequate defense cannot be framed if the lawyer does not know what is likely to develop at trial ... In criminal litigation, as in other matters, information is the key guide to decisions and action. The lawyer who is ignorant of the facts of the ease cannot serve the client effectively. P. 4.33. The duty to investigate is not eliminated by the client’s own conclusions or admissions of guilt, because the client’s beliefs may not coincide with the necessary elements of proof to establish guilt in law. The client may not be aware of the significance of facts regarding intent, mitigation, suppression of evidence, or impeachment of witnesses that only an independent investigation can uncover. See ABA Standard 4-4.1, Commentary at 4.54. This obligation cannot be short cut because of counsel’s professional experience or his prior personal experience with the defendant. Counsel’s experience and knowledge are not admissible evidence. “The most able and competent lawyer in the world can not render effective assistance in the defense of his client if his lack of preparation for trial results in his failure to learn of readily available facts which might have afforded his client a legitimate justiciable defense.” McQueen v. Swenson, 498 F.2d 207, 217 (8th Cir.1974) (citations omitted). See also United States v. Tucker, supra. “The effectiveness of advocacy is not to be measured solely by what the lawyer does at the trial; without careful preparation, the lawyer cannot fulfill the advocate’s role.” Commentary to ABA Standard 4-4.1. The parties have stipulated to several key facts pertaining to these issues: Stip. Facts No. 11 verifies that counsel did not obtain an expert to prepare a social history. Stip. Facts No. 12 verifies that counsel did not retain an investigator to interview witnesses. Stip. Facts No. 69 states that the police reports provided to counsel contained the names of 32 individuals with knowledge of the events pertaining to the murder. Nineteen of these individuals testified at the guilt phase. Stip. Facts No. 70 states that counsel interviewed only 3 of those individuals before trial: Ray Meeks, Valerie Stevens, and Annie Sue Bayless. Counsel did not obtain an independent evaluation of the ballistic evidence or the forensic evidence in the case. Such an investigation may have led to information useful in creating a defense to the charges, especially since two individuals were charged with the murder. Sgt. Parkhurst, the investigating police officer, did not believe that two .individuals shot Turner, because of the locations of the bullet entries on Turner’s body. Stip. Facts No. 84. Since the first shot was lethal, Sgt. Parkhurst believed that Turner would have fallen immediately, thereby making it impossible for Bonds to pass the gun to Harris to take a second shot. Stip. Facts No. 85, Parkhurst Evid.TR at 6-7. This information was contained in the police reports and autopsy, which were provided to counsel but was not elicited at trial. Stip. Facts Nos. 82 and 83. The need for an independent fact investigation was critical because Harris was the person who initiated police contact, provided evidence to the police, such as the bullets from the gun used to kill Turner, and kept up that contact until he caused them to turn their investigatory attention to him. Stip. Facts Nos. 29, 31, 32, and 33. Such an investigation was even more critical because Harris gave different versions of the murder at different times. Some of the most inculpatory versions may have been subject to attack, as stated above and in Grounds D, E, F, G, and N, infra. In addition to those individuals named in the police reports, Stip. Facts Nos. 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, and 81 describe various available individuals who had knowledge of events pertaining to the murder, or of Harris’s social and mental history. None of these individuals were interviewed by counsel and none of the information they had, either for defense at the guilt phase, or mitigation at the penalty phase, was presented by the defense. Counsel made the decision not to interview individuals whose names were provided to associate counsel by Harris. Haist Dep. at 11-12. Counsel did meet with Sgt. Parkhurst on two occasions before the CrR 3.5 hearing. Evid.TR at 13. Counsel, however, did not conduct the CrR 3.5 hearing on behalf of Harris. Associate counsel represented Harris at that hearing. See Ground F, infra. Counsel’s failure to interview witnesses deprived him of the opportunity of making an informed assessment of the strengths and weaknesses of the government’s case without attempting to ascertain specifically what the testimony of the government’s witnesses would be. In general, [counsel’s] ability to cross-examine the government’s witnesses effectively was seriously compromised by his failure to interview them, since he would have little idea as to the specific areas of testimony which could be challenged. United States v. Tucker, 716 F.2d at 883. Counsel’s lack of knowledge about the testimony of witnesses is seen throughout the trial. See, e.g., Vol. 1, VRP 247-48; Vol. 1, VRP 402 (no cross examination of medical examiner re ballistic evidence); Vol. 1, VRP 468-69; 475-78; 486 (no discovery of Meeks’ deals with prosecutor for his testimony); Vol. 2, 617-18 (no knowledge of Sylvia Harris’s testimony). Because of his poor preparation, counsel did not appear to fully understand the implications of Harris’s 22 October 1994 statement that he fired the second shot at Turner. Based on forensic evidence, police believed that Turner was killed by only one man. Parkhurst Evid.TR at 6-7; Stip. Facts No. 85 and Ex. G to Stip. Facts. Counsel testified that his trial strategy changed after hearing this statement. He testified that he was surprised with Harris’s new version of the events and he was essentially left without a theory of defense. There was no reason to allow Harris to make this statement as part of a reasonable defense strategy and to have suggested or allowed it was not competent. Cease Dep. at 41-42. See Grounds C and F, infra. One means of evaluating counsel’s performance in this case is to compare the activities of counsel for the co-defendant, Bonds. For example, the record reflects that a series of written pretrial motions were filed in the Bonds case. These were: Motion for Examination Pursuant to RCW 10.77.060(1) (Vol. 3, CP 1122-24); Motion to Sever Defendants for Purposes of Trial (joined by Harris after its filing) (Vol. 3, CP 1042-49); Motion for Change of Venue, or in the Alternative for Individual Voir Dire (Vol. 3, CP 1216-18); Motion re Unconstitutionality of RCW 10.95.-060(4) (Vol. 3, CP 1224-30); Motion to Quash Jury Panel (Vol. 3, CP 1272-76); Motion re Excusing for Cause a Juror Who is Opposed to Capital Punishment on Religious Grounds (Vol. 4, CP 1389-1411); Motion for Dismissal for Improper Prosecutorial Discretion and Violations of Due Process and Equal Protection (Vol. 3, CP 1202-06); Motion to Dismiss Based Upon the Unconstitutionality of RCW 10.95.040 and RCW 10.95.060(4) “as applied” (Vol. 4, CP 1412-21); Motion re Admissibility of Video Tape [Bonds’ counsel prepared a video tape, reenacting the murder] (Vol. 3, CP 1208-15); Motion to Dismiss [for Violation of 5th Amendment] (Vol. 3, CP 1231^45); Motion re Unconstitutionality of RCW 2.36.-010 (Vol. 3, CP 1219-23); Motion for Order Allowing Copy of Benjamin Harris Testimony (Vol. 3, CP 1207); and various motions in limine (see Order at Vol. 4, CP 1499). Harris’s counsel filed three written pretrial motions: Motion for Mental Examination (Vol. 3, CP 1138-41); Motion for Continuance of Trial Date and for Examination of Defendant by Defendant’s Own Expert (Vol. 3, CP 1162-63); and Request for CrR 3.5 Hearing (see order at Vol. 3, CP 1072). Another example is to compare the time representations of Harris’s counsel with those of counsel for Bonds. Since both individuals were charged with the same offense, the cases were based on the same evidence. In an unrelated affidavit, Bonds’s counsel stated: Finally, presentation of the penalty phase requires massive preparation by defense counsel. Such is not humanly possible at the same time as preparing for defense of the guilt phase. Some of the most basic and fundamental issues of life are required to be aired and argued to their fullest. Your affiant, while working literally seven days a week on this matter, has not had sufficient time to marshall that testimony, nor consider the appropriate strategies and arguments to present to the jury. Vol. 3, CP 1281. A review of Harris’s counsel’s time sheet indicates that he spent a total of only approximately 14 hours investigating and interviewing witnesses. Ex. J to Stip. Facts. It is inconceivable to this court that so little time was spent in pretrial investigation and preparation for a capital murder case. Counsel’s investigation and preparation for trial fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome. Ground C. Counsel failed to adequately consult with his client and to fully inform him on important issues and decisions regarding his defense. Harris argues that his counsel failed to spend enough time with him discussing pretrial motions, information learned from discovery, developments through investigation, trial strategy and tactics (including whether he would testify at trial), the overall defense theory, and the advantages and disadvantages of admitting to murder. The state responds that Harris erroneously relies solely on counsel’s billing statement, which is reflected in Stip. Facts No. 96 and Ex. J to Stip. Facts. That statement shows that counsel spent a total of one hour and 48 minutes consulting with Harris before the trial began. According to the state, this billing statement of the time spent by counsel on this case is inaccurate and does not reflect the true amount of time spent. The state contends that counsel routinely did not bill for his total time on a case. The most fundamental element of competent representation of any client is the establishment of trust and confidential relationship. ABA Standard 4-3.1(a). This is especially true in criminal defense and is paramount in a capital ease. Without this relationship, “the client may withhold essential information from the lawyer. Important evidence may not be obtained, valuable defenses neglected, and perhaps, most significant, the lawyer may not be forewarned of evidence that will be presented by the prosecution.” Commentary to ABA Standard 4-3.1. Even when a lawyer seeks input from the client on recommended strategic or tactical decisions affecting the client’s rights, the client’s reliance on counsel’s expertise and full and careful advice is critical. See ABA Standard 4-5.2 and commentary. The amount of client consultation required depends on the circumstances, charges, and facts of each individual case. At a minimum, “the consultation should be sufficient to determine all legally relevant information known to the defendant.” United States v. Tucker, 716 F.2d at 882 n. 12 (citing The ABA Standards for Criminal Justice, Standard 4-3.2). An attorney should contact the defendant immediately and “spend quite a bit of time with the individual at that early stage.” Cease Dep. at 14-15. Continual contact with the defendant thereafter is necessary to firmly establish a trusting relationship. Id. at 16. If defense counsel is faced with a client who does not follow his advice or has communication problems, the attorney should made a record, either in court or in his file, detailing the problem and his efforts to deal with the problem. Such a record is necessary 1) to protect the attorney from later attacks on his effectiveness and competency; 2) to assist the client; and 3) to notify the court that some curative action may be necessary to protect the client’s rights. Cease Dep. at 31-32; ABA Standard 4-5.2(c) and commentary. Stip. Facts No. 96 states that counsel billed for time with the defendant as follows: August 13, 12 minutes; October 11, 6 minutes; October 19, 90 minutes. Ex. J reflects additional time on August 8, 1984 of 1.4 hours and on August 9, 1984 of .8 hours. These latter two dates occurred after Harris’s arrest but before his arraignment on the murder charge. Counsel testified at the evidentiary hearing that it was difficult to talk to Harris while he was incarcerated because Harris believed the jail was bugged. He didn’t want to say a lot of things to me in the jail. We did have communication when we were in court. I would get the opportunity to talk to him before and after, sometimes quite lengthy. He—Q. How lengthy? A. Oh, five minutes, perhaps ten minutes type thing as to what we were doing, where we were going. Evid.TR at 14. Counsel recalled that he spoke with Harris on the telephone “maybe two or three, maybe as many as four or five” times. Id. at 15. Counsel made no effort to find another means of communicating with Harris in order to relieve Harris’s paranoid fears. Such accommodations are highly recommended in ABA Standard 4-3.1. Counsel was assisted by attorneys employed in his office, particularly one associate. Evid.TR at 6. Although there is no documentary information regarding the amount of time the associate spent with Harris, the associate testified that he met with Harris at the jail to review information he learned from the police reports, less than ten times, probably three or four times. Haist Dep. at 55. He stated that he was unable to accomplish that purpose because Harris did not rationally respond to his specific questions; that Harris would shift to irrelevant subjects. Id. at 9-10. In spite of this limited contact, counsel made the decision on how the trial would proceed from the defense perspective. Id. at 30. This included the initial decision to place Harris on the witness stand, to which Harris was “resigned.” Id. at 41. There was no lengthy witness preparation before placing Harris on the witness stand in the guilt phase. Id. at 37. In fact, the associate testified that counsel believed that Harris was incapable of testifying to anything, because of his inability to assist with his defense before trial. Id. at 38. The court is aware that counsel may have spent more than the documented one hour and 48 minutes consulting with Harris after charges were filed. Rather than come forward with supplemental time records reflected additional hours of consultation, counsel explained that Harris had little substantial information to contribute to his defense. As is discussed in Ground D, infra, Harris’s mental condition made meaningful consultation extremely difficult. If counsel had spent more personal time with Harris, he may have become convinced that Harris suffered from significant mental and/or emotional dysfunction, and may have acted differently. The court is also aware that the associate consulted with Harris, but counsel spent little time with the associate exchanging information gained from the associate’s visits with Harris. Haist Dep. at 18-19, 21. Counsel’s failure to adequately consult with his client fell below the objective standard of reasonableness and amounted to a deficient performance. There is a reasonable probability that, but for this deficiency, the result of the guilt and penalty phases would have been different, that is, the deficiency undermines confidence in the outcome. Ground D. Counsel failed to Investigate Harris’s mental and emotional status, including mental capacity and incompetence to stand trial. Harris argues that counsel did not interview numerous witnesses available to testify regarding his delusional mental state. Counsel did not seek or obtain medical and academic records which detailed his troubled childhood and youth, delusional thinking, and suicide attempts. As a result, Harris contends, the evaluating experts at Western State Hospital were not fully informed of his true history. Therefore, Harris argues, his counsel did not have accurate information to assess whether Harris was competent to stand trial or whether a defense of insanity or diminished capacity was appropriate. The state argues that Harris is unable to prove that he fit the criteria for incompetency to stand trial, and that a defense based on insanity or diminished capacity would not have appropriate. The state finds no fault with counsel’s decision to forego trial preparation on these issues.. Harris’s legal expert opined that in an aggravated murder ease, it is mandatory to hire a psychiatrist to assist counsel for several reasons: to advise on the propriety of placing the defendant on the witness stand; to assist with fact investigation and determination of what areas to pursue or not pursue; and to explain any bizarre behavior of the defendant. Cease Dep. at 20-25. These de-fíciencies amounted to ineffective assistance of counsel. Cease Dep. at 29. While the court does not conclude that a defense psychiatrist is necessary in every aggravated murder ease, certainly one was necessary in this case. In the Harris case, there were two distinct purposes warranting an investigation of insanity, diminished capacity or incompetence: as a defense to the charges in the guilt phase, and as mitigating evidence in the penalty phase. Stip. Fact No. 14 indicates that counsel was aware of Harris’s history of emotional problems and that counsel had similar communication problems with Harris during his representation in a criminal matter in May, 1968. Stip. Facts No. 50 verifies that counsel did not attempt to locate educational and medical records for Harris; Stip. Facts Nos. 51, 52, 53, 54, 55, 56, 57, 58, and 59 detail the types of records available from various sources, and their content. See also Exs. C and D to Stip. Facts. Counsel obtained an order allowing an independent psychological evaluation, but he failed to obtain an expert or to have Harris further evaluated until post trial proceedings. Counsel testified that he did not consider insanity or diminished capacity as defenses “[b]ecause I had no evidence upon which to hang my hat that they could be reasonably successful, and I didn’t believe them myself.” Evid.TR at 19. Counsel stated that although he was somewhat aware of some of the strange stories being stated by Harris in his letters, he believed that Harris was “dissembling”; that is, attempting to convince others that he was mentally ill. Id. at 37-38. However, counsel filed a motion for Harris to be evaluated and, off the record, discussed the matter with the trial court, who sent Harris to Western State Hospital for evaluation. Id. at 38-40. Counsel stated that although he filed the affidavit detailing Harris’s observable conduct, counsel believed that Harris was creating a false impression of his mental state. Counsel signed the affidavit supporting the motion fo