¶91
Sanders, J.(dissenting) —
[L]ives depend upon the effectiveness of counsel in trying capital cases.
Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 303 (1983).
¶92 Clark Elmore received ineffective assistance of counsel at both the guilt and penalty phases of his trial. Notwithstanding counsel’s multiple and severe errors, the majority upholds Mr. Elmore’s death sentence.
¶93 The United States Supreme Court has stated, “[t]he purpose [of the effective assistance guaranty of the Sixth Amendment] is simply to ensure that criminal defendants receive a fair trial.” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Because Mr. Elmore was deprived of such fairness here due to counsel’s deficient and prejudicial performance, I strongly dissent.
¶94 The Sixth Amendment to the United States Constitution guarantees “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” Our state constitution similarly provides, “[i]n criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel----” Const, art. I, § 22. A criminal defendant’s right to counsel is, in addition to a right to have counsel appointed, a right to meaningful representation. Accordingly, “the right to counsel is the right to the effective assistance of counsel.” *275McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).
¶95 To prevail on a Sixth Amendment ineffectiveness of counsel claim, Mr. Elmore must establish first that counsel’s performance was deficient, that is, counsel’s performance fell below an “objective standard of reasonableness” under “prevailing professional norms.” Strickland, 466 U.S. at 687-88. Second, Mr. Elmore must demonstrate he was prejudiced by counsel’s errors. In other words he must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.; State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
¶96 Here, counsel’s failure to competently investigate Mr. Elmore’s mental deficiencies, counsel’s failure to attempt to negotiate a plea bargain with the prosecutor, and counsel’s affirmative agreement to Mr. Elmore appearing in shackles before the jury collectively deprived Mr. Elmore of effective assistance of counsel in violation of his constitutional rights. In my view Mr. Elmore has demonstrated the severity of counsel’s errors individually, and the cumulative effect of such errors is sufficient “to undermine confidence in the outcome” of Mr. Elmore’s trial. Strickland, 466 U.S. at 694. I would therefore grant Mr. Elmore’s personal restraint petition and vacate his conviction and death sentence.
I. Counsel’s Failure To Competently Investigate Mr. Elmore’s Mental Deficiencies
¶97 Jon Komorowski, appointed lead counsel for the defense team, became aware through investigation that Mr. Elmore had suffered numerous head injuries, been exposed to Agent Orange in Vietnam, worked with chemicals as a mechanic for most of his life, and grown up in an area with a history of crop dusting. Findings of Fact (Sept. 10, 2004) (FOF) at 17-19. Despite such knowledge, Mr. Komorowski *276failed to have Mr. Elmore evaluated by a neuropsychologist or neurotoxicologist until after Mr. Elmore’s conviction. Counsel acknowledged,
I did not consider the potential importance of further exploring Mr. Elmore’s history for evidence of exposure to neurotoxins. Again, this was not a strategic decision, and instead was the product of our inexperience.
Decl. of Jon C. Komorowski at 5 (reproduced in Pers. Restraint Pet. & Br. in Supp., Attach. 2). Mr. Elmore now contends counsel’s failure to retain mental health experts for the purpose of investigating Mr. Elmore’s possible brain damage and neuropsychological deficiencies constitutes ineffective assistance of counsel. I agree.
¶98 Strickland, 466 U.S. at 691, demands counsel conduct a reasonable investigation under prevailing professional norms. “ ‘In a capital case the attorney’s duty to investigate all possible lines of defense is strictly observed.’ ” Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999) (quoting Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir. 1998)).
¶99 Here, counsel’s failure to consult mental health experts in the penalty phase (given counsel’s knowledge of Mr. Elmore’s history) was deficient as it fell below the “objective standard of reasonableness” under “prevailing professional norms” as part of the duty to investigate. Strickland, 466 U.S. at 687-88. Court-appointed death penalty expert Dennis Balske concluded Mr. Komorowski’s overall performance was objectively unreasonable and his most salient error was his failure to investigate Mr. Elmore’s “mental health issues.” Deck of Dennis Balske at 14 (reproduced in Pers. Restraint Pet. & Br. in Supp., Attach. 1). Mr. Balske observed,
Certain events in a client’s past . . . are well understood to mandate further investigation, e.g., a history of trauma; head injury; neurological abnormalities; mental illness in the client and the family; and significant exposure to chemicals, including controlled substances. If the defendant has a history of *277brain trauma or head injury, competent counsel would retain an expert trained in neuropsychology and/or neurology, at a minimum, to do an evaluation. Similarly, a family history of seizure disorders also raises a question regarding neurological damage. Substantial exposure to toxic substances calls for an evaluation by an appropriate specialist such as a neurotoxicologist. A psychiatrist may be necessary to understand the interrelation between the medical conditions and other mental health issues, e.g., trauma, in the client’s life.
Id. at 12. Mr. Balske concluded that in light of Mr. Elmore’s known history and the fact that “Mr. Elmore himself did not understand why he had committed this crime[,] . . . Reasonably competent counsel would have identified the possibility of neurological impairment and the existence of significant trauma in Mr. Elmore’s life.” Id. at 14-15.
¶100 The importance of mitigating evidence of brain damage is significant. In Rompilla v. Beard, 545 U.S. 374, 390, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), the United States Supreme Court determined lawyers were deficient in failing to examine a court file on the defendant’s prior conviction — a file which led to “a range of mitigation leads that no other source had opened up.” The files contained test results suggesting Rompilla suffered from schizophrenia and other disorders, and evidence that Rompilla was raised in a severely abusive household, that his parents were severe alcoholics, and that Rompilla’s mother drank throughout her pregnancy with him. Postconviction mental health experts found that Rompilla suffered from “ ‘organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions.’ ” Id. at 392 (quoting Rompilla v. Horn, 355 F.3d 233, 279 (3d Cir. 2004) (Sloviter, J., dissenting)).
¶101 The Court observed, “[t]he jury never heard any of this and neither did the mental health experts who examined Rompilla before trial.” Id. It opined the “undiscovered ‘mitigating evidence, taken as a whole, “might well have influenced the jury’s appraisal” of [Rompilla’s] culpability.’ ” Id. at 393 (alteration in original) (quoting Wiggins v. Smith, *278539 U.S. 510, 538, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 398, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000))). As such, the Court concluded, “the likelihood of a different result if the evidence had gone in [was] ‘sufficient to undermine confidence in the outcome’ actually reached at sentencing.” Id. (quoting Strickland, 466 U.S. at 694).
¶102 In Prowell v. State, 741 N.E.2d 704 (Ind. 2001), the Indiana Supreme Court concluded Prowell had received ineffective assistance of counsel in his capital case. Despite counsel’s suspicions that Prowell suffered from severe mental illness, counsel did not investigate such issues until two and one-half months after Prowell’s guilty plea. The court stated, “[w]ithout the assistance of a psychologist or psychiatrist and a mitigation investigator, Prowell’s trial counsel did not have the basic information necessary to advise Prowell as to a plea of guilty but mentally ill, nor did they have the ability to argue persuasively for a plea agreement on that basis.” Id. at 714.
¶103 Mr. Elmore’s defense team consulted three mental health experts prior to the penalty phase of trial, and the experts’ statements highlight the significance of counsel’s failure to investigate Mr. Elmore’s head injuries and exposure to toxins. Dr. Ronald Kleinknecht, hired by the defense team to assist in communicating with Elmore, was not given information regarding Mr. Elmore’s “life long exposure to neurotoxic agents and a series of head injuries.” FOF at 23. Dr. Kleinknecht indicated had he been given such information, “he would have likely referred Elmore for neurotoxic testing.” Majority at 247. Dr. Ronald Roesch was also hired by the defense team to assist in communications with Mr. Elmore because of Dr. Roesch’s background in forensics, psychopathy, and future dangerousness. FOF at 27. Dr. Roesch was also not given information regarding Mr. Elmore’s history of potential brain injury and stated had he been aware of Mr. Elmore’s history, he would have recommended a neuropsychological evaluation.
*279¶104 Postconviction evaluations performed by Dr. Dale Watson, Dr. George Woods, and Dr. Raymond Singer9 revealed evidence of Mr. Elmore’s neuropsychological deficiencies and indicated he was suffering extreme emotional disturbance at the time he committed the crime, a mitigating factor under RCW 10.95.070(2). Dr. Dale Watson, a neuropsychologist, performed a neuropsychological evaluation of Mr. Elmore. FOF at 44. According to Dr. Watson, Mr. Elmore suffered from neuropsychological deficits which contributed to his lifelong pattern of impulsivity, poor judgment, and vulnerability to stress. FOF at 50. Mr. Elmore’s history of violent abuse by his father, his stutter, his mother’s exposure to toxins during her pregnancy, and his series of head injuries and certain illnesses were all factors significant to Dr. Watson’s ultimate conclusion. In Dr. Watson’s opinion, Mr. Elmore’s neuropsychological deficits contributed to his crime and his behavior during, before, and after the crime was consistent with brain damage. Id. Dr. Watson believes Mr. Elmore was suffering from an extreme emotional disturbance at the time he committed the crime. FOF at 51-52.
¶105 Dr. George Woods is a physician specializing in neuropsychiatry. In Dr. Woods’ opinion, Mr. Elmore suffers brain impairment and Mr. Elmore’s “abusive, violent, alcoholic and chaotic family life compounded his cognitive defects, explaining his mental state at the time of the offense.” FOF at 56. Dr. Woods believes Mr. Elmore’s “neuropsychological deficits, contributed in a direct way to an extreme emotional disturbance and inability to affectively conform his behavior.” FOF at 60. Further, in Dr. Woods’ opinion Mr. Elmore was suffering from extreme emotional disturbance at the time of his crime, which “impaired his affective ability to conform his conduct to the requirements of the law.” Id. He believes Mr. Elmore’s neuropsychological deficits combined with fear, anger, and frustration “overwhelmed Mr. Elmore and moved him to a level *280of violence that he had not committed before or since.” FOF at 62.
¶106 Dr. Raymond Singer is a neuropsychologist and neurotoxicologist. In Dr. Singer’s opinion Mr. Elmore suffers from functional deficits consistent with significant exposure to various neurotoxic agents over the course of a lifetime. Dr. Singer believes Mr. Elmore’s neuropsychological deficits have manifested in Mr. Elmore’s learning difficulties, attention span, and problems “inhibiting himself in various circumstances.” FOF at 70. Dr. Singer believes such deficits “ultimately culminate [d] in [Mr. Elmore’s] crime.” Id.
¶107 Due to his failure to retain such expert advice, Mr. Komorowski was unable to present the above-stated mitigating evidence for purposes of plea bargaining. Further, Mr. Elmore’s jury heard nothing of Mr. Elmore’s brain damage or neuropsychological difficulties despite Mr. Komorowski’s awareness, through the advice of a capital case consultant, that such evidence did not contradict evidence of remorse and that, to the contrary, such evidence could, in fact, enhance the evidence of remorse. FOF at 37. Dennis Balske stated,
The failure to consult with experts who could accurately assess Mr. Elmore’s brain dysfunction was particularly harmful in this case because without such evidence the jury was left with no explanation for the crime .... [T]he jury was given no insight as to why Mr. Elmore would commit this crime.
Decl. of Dennis Balske at 21. “In the sentencing phase of a capital case, ‘[what] is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.’ ” Strickland, 466 U.S. at 705 (alteration in original) (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), overruled in part on other grounds by Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007)). “The mitigating evidence counsel failed to discover and present in this case is powerful.” Wiggins, 539 *281U.S. at 534. Due to the tremendously compelling nature of the postconviction experts’ testimony regarding Mr. Elmore’s brain impairment, “there is a reasonable probability that at least one juror would have struck a different balance” had they heard such evidence. Id. at 537. In my view Mr. Elmore was prejudiced by counsel’s failure to competently investigate Mr. Elmore’s mental health deficiencies.
II. Counsel’s Failure To Attempt To Negotiate a Plea Bargain
¶108 Mr. Elmore’s counsel did not attempt to negotiate a plea bargain with the prosecutor. He stated in an affidavit,
I . . . believe that I told the prosecutor that Mr. Elmore would probably enter a guilty plea no matter what the prosecutor decided. I do not recall specifically attempting to negotiate a deal with the prosecutor whereby Mr. Elmore would plead guilty in exchange for the prosecutor either agreeing not to seek the death penalty or agreeing by stipulation or some other means at sentencing that a life sentence was the appropriate sentence. . . .
I did not attempt to negotiate a plea bargain whereby the prosecutor would agree to dismiss one of the aggravating circumstances in exchange for a guilty plea. I did not consider how the existence of two aggravating circumstances could negatively affect proportionality review if a death sentence was imposed.
Decl. of Jon C. Komorowski at 2-3.
¶109 Because Mr. Elmore alleges ineffective assistance of counsel, he “ ‘must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.’ ” In re Pers. Restraint of Hutchinson, 147 Wn.2d 197, 206, 53 P.3d 17 (2002) (quoting State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)). This test is easily met here as Mr. Komorowski’s failure to negotiate for a plea bargain was based on neither strategy nor tactic, nor was his failure to negotiate the product of reasonable professional judgment. See Strickland, *282466 U.S. at 690 (defendant claiming ineffective assistance of counsel “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment”). Dennis Balske observed,
In a case where [a] defendant is competent to proceed and still wants to plead guilty, reasonably competent counsel would make all efforts to attempt to obtain a plea offer that avoids the possibility of a death sentence in exchange for a guilty plea. If trial counsel is unable to obtain such a bargain and the defendant nonetheless insists on pleading guilty after exhaustive discussions with counsel, reasonably competent counsel would seek to minimize the number of aggravating factors by persuading the prosecuting attorney to dismiss one or more aggravating factors in return for the plea.
Decl. of Dennis Balske at 11.
¶110 Because Mr. Komorowski’s failure to attempt to negotiate a plea bargain was simply a negligent oversight and not the result of strategy or tactic, I agree with Mr. Elmore that such failure constitutes ineffective assistance of counsel. Had counsel even attempted negotiation, there is a reasonable probability that he might, at the very least, have convinced the prosecutor to dismiss one of the two aggravators. See Strickland, 466 U.S. at 694 (to demonstrate prejudice, defendant alleging ineffective assistance of counsel must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”).
III. Counsel’s Failure To Object to Mr. Elmore Appearing before the Jury in Shackles
¶111 On the first day of voir dire at his sentencing trial, Mr. Elmore appeared before the jury panel in shackles. He now argues counsel’s affirmative agreement to the shackling constitutes ineffective assistance of counsel. The majority agrees with Mr. Elmore that “counsel’s failure to object to his client appearing before the jury in shackles fell below an objective reasonableness standard for counsel in a capital case.” Majority at 261. Nevertheless, the majority *283asserts counsel’s error is harmless, distinguishing our decision in State v. Finch, 137 Wn.2d 792, 975 P.2d 967 (1999), on the grounds that “Elmore was shackled only on the first day of the sentencing trial.” Majority at 261. The fact that Mr. Elmore was shackled before the jury for only one day is not particularly persuasive since Mr. Elmore’s shackled appearance, even for one day, is sufficient to “indicate [ ] to the jury that [Mr. Elmore] is viewed as a ‘dangerous’ and ‘unmanageable’ person... who cannot be controlled, even in the presence of courtroom security.” Finch, 137 Wn.2d at 863.
¶112 The majority continues, “unlike the defendant in Finch, Elmore’s trial strategy was to demonstrate remorse and to accept responsibility,” and “[t]his evidence was sufficient to offset any implication of dangerousness created by Elmore’s appearance in shackles.” Majority at 261. This makes little sense. By affidavit, Mr. Komorowski testified one of the defense team’s “primary mitigation themes” in addition to remorse was Mr. Elmore’s “lack of future dangerousness.” Decl. of Jon C. Komorowski at 4. In Finch we held, “[s]hackling sends a message to the jury that, in the court’s view, the defendant is so dangerous that he or she cannot be allowed to attend the proceedings, even with other security measures, without physical restraints.” Finch, 137 Wn.2d at 864-65. Finch did not hold that the shackling of a criminal defendant conveys feelings of remorse.
¶113 “[F]uture dangerousness or the probable lack of future dangerousness of the defendant is a relevant factor for a jury’s consideration in deciding whether to impose a death sentence.” Id. at 864; see also Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir. 1995) (“In the penalty phase of a capital trial, the jury knows the defendant is a convicted felon. But the extent to which he continues to be dangerous is a central issue the jury must decide in determining his sentence.”). I agree with the majority that counsel’s failure to object to his client appearing before the jury in shackles fell below Strickland’s standard for reasonableness. Unlike *284the majority, I believe Mr. Elmore was unfairly prejudiced by counsel’s error and I do not agree the error was harmless. See Finch, 137 Wn.2d at 865 (presence of the defendant in physical restraints “prejudiced him in such a manner that warrants a reversal of his death sentence”).
¶114 Because counsel’s performance was deficient and prejudicial enough “to undermine confidence in the outcome” of Mr. Elmore’s trial, his petition for relief should be granted and his conviction and death sentence vacated. Strickland, 466 U.S. at 694.
f 115 I therefore dissent.
Reconsideration denied February 22, 2008.
All three experts were deemed “duty qualified” and credible by the trial court. FOF at 5.