dissenting:
Douglas Edward Gretzler has been sentenced to death following a trial that lacked fundamental fairness. In denying Gretzler’s habeas petition, United States District Judge Richard M. Bilby observed:
This case represents everything that is wrong with death penalty litigation-an inexperienced lawyer (only three years experience with no death penalty cases); a parsimonious criminal system that would not grant the defendant sufficient funds to adequately defend himself; and an overzealous prosecutor who did his best, successfully, to deprive the defendant of needed funds for an adequate defense.
Gretzler v. Lewis, No. 85-537 TUC RMB, slip op. at 67 n. 9 (D.Ariz. Sep. 26, 1995).
The crucial issue at Gretzler’s trial was whether Gretzler could form the specific intent necessary to sustain a conviction for first-degree murder. Gretzler’s counsel repeatedly requested that the trial court appoint an independent psychiatrist to assist in *1010the preparation and presentation of an adequate defense on this issue. The court denied these requests. The trial court’s failure to provide Gretzler with the assistance of an independent psychiatrist violated Gretzler’s due process rights. Therefore, I would reverse Gretzler’s conviction and grant him a new trial.
I.
Evidence discovered after Gretzler’s conviction supports his claim that he lacked the necessary intent to commit first-degree murder. The evidence includes the following:
(1) at age 13, Gretzler was diagnosed as suffering from anxiety and depression;
(2) from age 13 until the time the murders were committed, Gretzler used amphetamines and LSD as a means of self-medication;
(3) when Gretzler was 16, his older brother killed himself;
(4) Gretzler suffered from a significant mental disorder — “schizophrenic reaction, paranoid type” — throughout most of his life;
(5) at the time of the offenses, Gretzler was taking intravenous doses of amphetamines, had gone without sleep for several days, and likely suffered from amphetamine-induced psychosis;
(6) amphetamine-induced psychosis can impair the ability to premeditate and lead to paranoia and hyper-suggestibility — a condition which causes a person to follow commands or suggestions without any thought as to whether the action is right, wrong, or even possible;
(7) the amphetamine-induced psychosis may have permitted Gretzler’s companion, Willie Steelman, to control Gretzler’s actions;
(8) a person in an amphetamine-induced psychosis would generally meet the M’Naghten insanity test;
(9) amphetamine-induced psychosis is associated with a high incidence of uncontrollable violence; and
(10) at the time of the offenses, Gretzler did not know the nature and quality of his acts or that what he did was wrong.
Gretzler claims that the trial court’s refusal to appoint an independent psychiatrist to assist in the defense prevented his attorney, David Hoffman, from placing before the jury critical evidence on Gretzler’s mental state.
Defense counsel Hoffman made his first request for the assistance of an independent psychiatrist under Arizona Revised Statutes § 13-1673(B) (now Ariz.Rev.Stat. § 13-4013(b)) which provides:
When a person is charged with a capital offense the court may on its own initiative and shall upon the application of the defendant and a showing that the defendant is financially unable to pay for such services, appoint such investigators and expert witnesses as are reasonably necessary adequately to present his defense at trial and at any subsequent proceeding.
Id. (emphases added). This section expressly mandates the appointment of expert witnesses needed by indigent capital defendants like Gretzler. Nevertheless, the trial court denied Hoffman’s request.
At the court’s direction, Hoffman then filed a motion for a psychiatric examination of Gretzler under Rule 11 of the Arizona Rules of Criminal Procedure. Under Rule 11, the trial court may appoint one expert nominated by the accused and one expert nominated by the state. Ariz.R.Crim.P. 11.3. Rule 11 further provides that “[t]he court may, in its discretion, appoint additional experts ... when advised by an appointed expert that such examinations are necessary to an adequate determination of the defendant’s mental condition.” Id. 11.3(f). Hoffman nominated Dr. David Gurland on Gretzler’s behalf; the state nominated Dr. Allan Beigel. The doctors were to determine whether Gretzler was competent to stand trial and examine his mental state at the time of the murders. Id. 11.2. The doctors reported their results directly to the trial court. Rule 11 did not require either doctor to assist Hoffman in the evaluation, preparation, or presentation of Gretzler’s defense.
Dr. Gurland spent approximately two hours preparing for the exam and about one hour with Gretzler. Dr. Beigel examined Gretzler for about forty-five minutes. Both doctors found Gretzler competent to stand *1011trial. Both doctors also found that at the time of the murders, Gretzler was impaired by his drug use but could form intent. Although Dr. Gurland did explore Gretzler’s drug use, he did not know the quantity of drugs involved. Dr. Beigel concluded that at the time of the murders, Gretzler was probably in “an acute paranoid state and possibly paranoid schizophrenic.” Based on these reports, the trial court found Gretzler competent to stand trial.
Hoffman then made a second request for the assistance of an independent psychiatrist under Ariz.Rev.Stat. § 13-1673(B). Hoffman based the request on the insufficiency of the Rule 11 examinations and on the state’s disclosure that Gretzler had engaged in heavy drug use at the time of the murders. Hoffman stated:
[Defendant is in dire need of the appointment of a psychiatrist ... to determine the effect of amphetamine-based drugs and cocaine taken in combination upon the defendant; to determine the defendant’s ability to form specific intent; and to do a complete psychiatric and psychological examination of the defendant in order to assist counsel in the preparation and presentation of his defense.
Four months later, before the trial court had ruled on Hoffman’s second request for the assistance of an independent psychiatrist, Hoffman submitted a new request for extensive psychological testing of Gretzler. This request specifically noted Gretzler’s previous institutionalization for mental illness and Dr. Beigel’s conclusion that Gretzler was probably in “an acute paranoid state and possibly paranoid schizophrenic” at the time of the murders. The trial court denied Hoffman’s request because both Dr. Gurland and Dr. Beigel had indicated that an additional examination was unnecessary.
Finally, near the end of Gretzler’s trial, Hoffman, for the fourth time, again sought additional psychiatric examinations based on the insufficiency of the Rule 11 exams and Dr. Beigel’s failure to question Gretzler about drug intoxication, an issue which had become central to the case. The trial court again denied Hoffman’s request.
II.
In Ake v. Oklahoma, the Supreme Court decreed that indigent individuals have a right to the assistance of a psychiatrist in their defense. The Supreme Court held:
[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985).
In interpreting Ake, this court has noted: “Ake makes clear that psychiatric assistance is a contingent, not an absolute, right: it holds that ‘when a defendant has made a preliminary shoioing that his sanity at the time of the offense is likely to be a significant factor at trial’ the state must provide psychiatric assistance.” Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir.1995) (quoting Ake, 470 U.S. at 74, 105 S.Ct. at 1091-92), cert. denied, — U.S. -, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996).
In the present ease, the majority concludes that Hoffman failed to make the preliminary showing required under Ake because the trial court found Gretzler to be sane at the time of the murders and competent to stand trial. The trial court based its decision on the testimony and reports of Dr. Gurland and Dr. Beigel. I disagree with the majority’s conclusion.
In cases decided after Ake, it is clear that the accused must make a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial. In cases decided before Ake, such as the present case, the inquiry is whether counsel could have made the preliminary showing. See Castro v. Oklahoma, 71 F.3d 1502, 1513 (10th Cir.1995) (noting that in pre-Ake eases, the inquiry is whether petitioner could have made a preliminary showing) (citing Liles v. Saffle, 945 F.2d 333, 336 (10th Cir.1991), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992)). Thus, Gretzler only has to show that defense counsel Hoffman could *1012have made a preliminary showing that Gretzler’s mental state would be a significant factor at trial. Nevertheless, even if Hoffman were required to make a preliminary showing, he satisfied that burden.
Hoffman challenged the trial court’s reliance on Dr. Gurland and Dr. Beigel’s testimony and reports. Hoffman pointed out the inadequacy of the Rule 11 exam and explained that the effect of Gretzler’s mental state and drug usage on his ability to form specific intent could not be addressed without the assistance of an independent psychiatrist. See Starr v. Lockhart, 28 F.3d 1280, 1289 (8th Cir.) (finding court-appointed mental health examiners’ report inadequate because it did not explain how mild retardation affected the accused’s appreciation of the results of actions he admittedly knew were wrong), cert. denied, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994).
Furthermore, Hoffman presented the trial court with sufficient evidence to demonstrate that Gretzler’s mental state at the time of the murders would be “a significant factor at trial.” Ake, 470 U.S. at 74, 105 S.Ct. at 1091. First, Hoffman made repeated requests that the court appoint an independent psychiatrist to assist Gretzler in his defense, including one request during the trial after Gretzler’s drug intoxication had been raised as an issue. Compare Cowley v. Stricklin, 929 F.2d 640, 643 (11th Cir.1991) (finding that “repeated, timely, and specific requests for expert assistance” satisfied the preliminary showing required under Ake) with Williams, 52 F.3d at 1474 (finding no preliminary showing where counsel never moved for appointment of independent psychiatrist nor attempted to demonstrate that mental state would be at issue). Second, Hoffman offered Dr. Beigel’s report that concluded that Gretzler was probably in an “acute paranoid state and possibly paranoid schizophrenic” at the time of the murders. Third, the evidence revealed that Gretzler engaged in heavy drug use at the time of the murders. Taken as a whole, this evidence clearly satisfies the preliminary showing under Ake that the assistance of an independent psychiatrist was needed because Gretzler’s mental state would be a “significant factor at trial.”
The Rule 11 exam by Dr. Gurland and Dr. Beigel did not, however, satisfy Gretzler’s right to the assistance of an independent psychiatrist under Ake. Both the Supreme Court and this court have made it clear that the requirement of psychiatric assistance is not satisfied by the appointment of a neutral psychiatrist answerable to the court. Ake, 470 U.S. at 83, 105 S.Ct. at 1096; Williams, 52 F.3d at 1473. As this court reasoned in Smith v. McCormick, “to grant court-appointed psychiatric assistance only on condition of automatic full disclosure to the fact finder impermissibly compromises presentation of an effective defense, by depriving [the defendant] of ‘an adequate opportunity to present [his] claims fairly within the adversary system.’” 914 F.2d 1153, 1159 (9th Cir.1990) (quoting Ake, 470 U.S. at 77, 105 S.Ct. at 1093). “Instead, due process requires the appointment of one psychiatrist for use by the defense in whatever fashion defense counsel sees fit.” Williams, 52 F.3d at 1473 (emphasis added).
In this case, the Rule 11 examinations were not confidential. Dr. Gurland and Dr. Beigel reported their findings directly to the trial court. Furthermore, Rule 11 did not specifically require either psychiatrist to assist Hoffman in the evaluation, preparation, or presentation of Gretzler’s defense.1 Accordingly, Gretzler never received an independent psychiatrist “for use by the defense in whatever fashion defense counsel sees fit.”
Hoffman presented the trial court with sufficient evidence to demonstrate that Gretzler’s mental state would be a significant issue at trial. Gretzler thus had the right to an independent psychiatrist to assist in evaluating, preparing, and presenting his defense. By denying Gretzler such assistance, *1013the trial court violated Gretzler’s due process rights and deprived him of a fundamentally fair trial.
III.
The question remains how to treat the trial court’s error in denying Gretzler the assistance of an independent psychiatrist. I believe that the trial court’s error is structural and requires reversal.
Structural error occurs when the “entire conduct of the trial from beginning to end is obviously affected.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). As the Supreme Court stated in Chapman v. California, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967); see, e.g., Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (right to correct jury instruction on reasonable doubt); Vasquez v. Hillery, 474 U.S. 254, 266, 106 S.Ct. 617, 624-25, 88 L.Ed.2d 598 (1986) (right to a racially nondiscriminatory grand jury selection); Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 2217 n. 9, 81 L.Ed.2d 31 (1984) (right to public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) (right to self-representation); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (right to an impartial judge).
Some circuits subject an Ake violation to a harmless error analysis. See, e.g., Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th Cir.), cert. denied, — U.S.-, 117 S.Ct. 237, 136 L.Ed.2d 166 (1996); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996); Starr v. Lockhart, 23 F.3d 1280, 1291-92. (8th Cir.), cert. denied, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994). Ake itself, however, simply reversed the conviction .without discussing harmless error analysis. See also Smith v. McCormick, 914 F.2d at 1170 (reversing conviction without engaging in harmless error analysis); Ford v. Gaither, 953 F.2d 1296 (11th Cir. 1992) (same); Cowley v. Stricklin, 929 F.2d 640 (11th Cir.1991) (same).
In Vickers v. Arizona, Justice Marshall, Ake’s author, stated that:
[The Arizona Supreme Court] wrongly subjects Ake claims to harmless-error analysis. In Ake, we did not endeavor to determine whether the petitioner’s case had been prejudiced by the lack of a psychiatrist. Rather, we determined that, in general, psychiatric assistance is of extreme importance in cases involving an insanity defense, and that without that assistance “the risk of an inaccurate resolution of sanity issues is extremely high.” Because the petitioner had made the threshold showing that his sanity was a significant issue at trial and the State had failed to offer psychiatric assistance, we reversed and remanded for a new trial.
497 U.S. 1033, 1037, 110 S.Ct. 3298, 3300, 111 L.Ed.2d 806 (1990) (Marshall, J., dissenting from denial of certiorari) (citations omitted). See also Starr, 23 F.3d at 1294—95 (McMillian, J., concurring) (stating that Ake errors require per se reversal).
Ake is based on a determination that to deny psychiatric assistance when the accused’s mental state at the time of the offense is at issue creates an extremely high probability of an erroneous factual determination on that issue. Ake, 470 U.S. at 82, 105 S.Ct. at 1095-96. Therefore, “competent psychiatric assistance in preparing the defense is a ‘basic tool’ that must be provided to the defense.” Smith, 914 F.2d at 1159 (quoting Ake, 470 U.S. at 77, 105 S.Ct. at 1093).
In this case, the trial court’s failure to appoint an independent psychiatrist to assist in Gretzler’s defense affected the entire trial from beginning to end. The only real issue at trial was whether Gretzler had the necessary mental state when the murders were committed. The defense therefore needed an independent psychiatrist to examine Gretzler, draw conclusions about his mental state, help develop effective questions for cross-examination of state witnesses, and explain medical terms. Furthermore, an indepen*1014dent psychiatrist could have supplied critical testimony to persuade a jury that Gretzler lacked the requisite intent.
The evidence discovered after Gretzler’s conviction casts serious doubt on Gretzler’s ability to form the intent required to sustain a conviction for first-degree murder. Without the assistance of an independent psychiatrist, however, Gretzler was precluded from effectively raising his mental state as a defense,2 and denied the opportunity to present any effective defense.
For all these reasons, the trial court’s failure to appoint an independent psychiatrist to assist in Gretzler’s defense constitutes structural error which requires automatic reversal.
IV.
In Harris v. Vasquez, this court determined that Ake announced a new constitutional rule of criminal procedure. 949 F.2d 1497, 1518 (9th Cir.1990), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those eases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). One Teague exception states that “a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” Id. at 307, 109 S.Ct. at 1073 (internal quotations omitted); see also Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1263-64, 108 L.Ed.2d 415 (1990) (noting that Teague allows retroactivity for ‘“watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding”) (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76) (emphasis added).
Because Gretzler’s conviction became final prior to the Ake decision, Ake’s rule cannot be applied retroactively to this case unless an exception applies. Whether Ake applies retroactively is still an open question in this circuit. See Harris, 949 F.2d at 1519 (stating that “we ... do not decide Ake’s retroactivity”). But see Bassette v. Thompson, 915 F.2d 932, 938-39 (4th Cir.1990) (holding that Ake’s rule does not apply retroactively).
The majority summarily concludes that it is not convinced that Ake’s rule “is a Vatershed rule of criminal procedure’ lying in that ‘small core of rules’ that are ‘implicit in the concept of ordered liberty.’” I disagree. Ake’s rule applies retroactively because it implicates the fundamental fairness and accuracy of Gretzler’s trial.
In Ake, the Supreme Court stated:
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
Ake, 470 U.S. at 76, 105 S.Ct. at 1092.
Whether a new constitutional rule of criminal procedure is a “watershed rule” requiring retroactive application turns on society’s interests in conducting a fair proceeding. As the Supreme Court noted in Ake, “a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.” Ake, 470 U.S. at 77, 105 S.Ct. at 1093. Where an indigent’s defense in a capital case rests on his mental state at the time of the offense, the assistance of an *1015independent psychiatrist is “integral to the building of an effective defense.” Id.
Ake’s rule is also critical to ensure accurate verdicts. “[W]ithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Id. at 82, 105 S.Ct. at 1096 (emphasis added). In Harris, this court echoed Ake’s concern for accuracy in stating: “[W]e recognize that a defendant’s access to a competent psychiatrist might increase the likelihood of an accurate conviction.” Harris, 949 F.2d at 1520 (emphasis added). See also id. at 1529 (“If [a new] rule enhances the accuracy of the determination of the facts and goes to fundamental fairness, the rule is applied retroactively. The Ake rule is of this kind.”) (Noonan, J. concurring in part, dissenting in part).
In this case, the only real issue at trial was Gretzler’s mental state at the time of the murders. The appointment of an independent psychiatrist to assist in Gretzler’s defense clearly would have increased the likelihood of a fair and accurate verdict. Because the Ake rule implicates fundamental fairness and will increase the likelihood of an “accurate conviction,” Ake should apply retroactively.
For the above-stated reasons, I would reverse the conviction and remand for a new trial.
. The Rule 11 exam was also inadequate because Dr. Beigel examined Gretzler only to determine his competency to stand trial, not to determine his mental state at the time of the murders. See Ford v. Gaither, 953 F.2d 1296, 1299 (11th Cir. 1992) (finding an Ake violation where psychiatriste evaluated defendant but failed to assess defendant’s competency at the time of the offense); Cowley v. Stricklin, 929 F.2d 640, 645 (11th Cir.1991) (noting that Ake is not satisfied by a psychiatrist who failed to determine defendant’s mental state at the time of the offense).
. "Denial of the assistance of a psychiatrist does more them hinder the defendant in raising an effective insanity defense; it prevents [the accused] from raising the defense at all." Note, Michael J. Lorenger, Ake v. Oklahoma and Harmless Error: The Case for a Per Se Rule of Reversal, 81 Va.L.Rev. 521, 547 (1995) (arguing that Ake violations should be subject to automatic reversal because the indeterminate effect that psychiatric testimony has on a lay jury makes quantifying the error mere guesswork).