United States v. Kreutzer

CURRIE, Judge,

concurring in the result.

I join in affirming the findings of guilty of all offenses to which appellant pled guilty. I write separately to express my opinion that appellant was denied effective assistance of counsel during the findings phase of his court-martial. On that basis, I would set aside the findings contrary to appellant’s pleas and the sentence and authorize a rehearing. I also believe, as explained below, that the military judge erred by denying appellant’s request for expert assistance.

To begin, I quote with complete agreement from Chief Judge Cox’s concurring opinion in United States v. Curtis, 48 M.J. 331 (C.A.A.F.1997):

Because there is broad discretion in the commander to seek the death penalty and because it only takes one court member’s vote in either the findings or sentencing phase of a court-martial to defeat a death sentence, we quite naturally see a wide discrepancy in the imposition of the death penalty in courts-martial. Thus, I am now convinced that in order to ensure that those few military members sentenced to death have received a fair and impartial trial within the context of the death-penalty doctrine of the Supreme Court, we should expect that:
1. Each military servieemember has available a skilled, trained, and experienced attorney;
2. All the procedural safeguards prescribed by law and the Manual for Courts-Martial have been followed; and,
3. Each military member gets full and fair consideration of all pertinent evidence, not only as to findings but also as to sentence.

Id. at 332 (footnote omitted) (denying government’s request for reconsideration); see also United States v. Murphy, 50 M.J. 4, 15 (C.A.A.F.1998).1

Appellant’s trial can be summed up in one sentence: three defense counsel who lacked the ability and experience to defend this capital case were further hampered by the military judge’s erroneous decision to deny them necessary expert assistance, thereby rendering the contested findings and the sentence unreliable.

BACKGROUND

It is undisputed that on the morning of 27 October 1995 appellant shot and killed Major (MAJ) Stephen A. Badger and wounded eighteen of his fellow soldiers. Unknown to the court members, however, was the full extent of appellant’s deteriorating mental stability before the attack.

Appellant2

Appellant was born on 12 April 1969. His father was a police officer and his mother a homemaker. He has two older sisters and a younger brother. Both parents’ families have a history of alcoholism and depression.

Appellant was a reserved and lonely child. He was a good student, but had difficulty making friends, participated in few extracurricular activities, and was a poor athlete. Appellant was sensitive to criticism, lacked self-confidence, and suffered feelings of inadequacy and low self-esteem. He developed symptoms of depression when he was about twelve-years-old. These feelings increased as appellant grew older.

The military, law enforcement, and firearms fascinated appellant from an early age. He spent much time reading about war and the military, playing war and fantasy games such as Dungeons and Dragons, and learning about and shooting firearms. These interests increased as appellant grew older.

*786Appellant was unhappy in high school. He had few friends and was often lonely and depressed. Although attracted to girls, they were not interested in him. He felt “geeky.” Without close Mends and unable to discuss his problems with his parents, appellant confided in no one.

Appellant first seriously considered suicide when he was sixteen. Appellant, in a post-trial affidavit, said:

On various occasions, I would retreat to my room, get a gun, load it and point it at myself. I would sit there, alone, with the gun at my head, immobilized. Each time, I was incapable of killing myself____ These episodes occurred at least ten times during my mid to late teens.

Appellant also cut himself numerous times as “expressions of severe depression.”

In 1987, appellant graduated from high school in the top 5% of his class. He began college in the fall of 1987 and graduated in December 1991 with a degree in criminology. He lived at home during his college years. Since he commuted to school, he never felt part of the college community. He worked a few part-time jobs, but did not participate in extracurricular activities. He continued to have problems relating to women and did not have a girlfriend. Appellant’s interest in guns increased — he collected firearms and increasingly devoted time reading about them and attending gun shows. He also continued to consider suicide.

During his first two years of college, JR, a cousin diagnosed as a paranoid schizophrenic, lived with appellant’s family. JR’s condition worsened to the point that the family feared for its safety, and JR was told to leave. At the same time, one of appellant’s sisters was in a verbally and physically abusive relationship with a man. Her pain greatly angered appellant. On one occasion, appellant secured a gun intending to confront the man, but appellant’s father stopped him. It was the first time appellant experienced “homicidal feelings.”

In September 1991, one of appellant’s few Mends committed suicide by shooting himself in the head. Appellant enlisted in the Army that same month via the Delayed Entry Program. He entered active duty in February 1992 in the rank of Specialist (SPC) due to his college education. His primary military occupational specialty was 11B, Infantryman.

Following his initial entry training at Fort Benning, Georgia, appellant entered the Ranger Indoctrination Program, but failed the water survival course on the second day and quit. Appellant subsequently was assigned to the Long Range Surveillance Company in the XVIII Airborne Corps, Fort Bragg, North Carolina, where he served from August 1992 to March 1993. Some of his superiors thought he performed competently, but his introverted personality caused some morale problems within his unit. He was considered intelligent and highly knowledgeable about weapons, but some thought him a “nerd,” a “geek,” “strange,” “odd,” a “loner,” and “introverted.”

Even at this early point, appellant made Mghtening remarks. He told one soldier, “One of these days I am going to kill somebody.” He told members of his unit that he planned to form a sniper team to kill the President. He also acutely felt the stress of being a soldier. During his last field problem with his team, appellant complained and cried about the difficulty of the exercise. According to one soldier, appellant “totally broke down” and had to be removed from the exercise.

Perceived as a failure, appellant was reassigned to A Company, 4th Battalion, 325th Airborne Infantry Regiment, 82d Airborne Division, Fort Bragg, North Carolina. In October 1993, he deployed with his unit to Jordan for three weeks without incident. In January 1994, he deployed to the Sinai Peninsula in Egypt for six months. Appellant’s mental health deteriorated considerably during this time. His supervisors initially considered him an excellent duty performer who worked hard to help junior soldiers. However, despite his rank as a specialist, he was relatively inexperienced as a soldier. This fact, coupled with his strange personality, led to problems.

While in the Sinai, some of appellant’s colleagues teased and played practical jokes on him. Angered by this ridicule, he fanta*787sized out loud about killing some of his squad members. In June 1994, appellant told another soldier in his platoon that he intended to get an automatic weapon and “hose down the enlisted barracks.” He told other soldiers about killing his squad members during a unit formation. As a result, some soldiers thought appellant was crazy and referred to him as “Crazy Kreutzer,” “Hannibal Lector,” and “Psycho.”

In June or July 1994, appellant broke down crying while on guard duty. When another soldier asked what was wrong, appellant went “into a rage and screamed[,] ‘I’m going to kill them mother-fuckers, Harlan. I’m going to kill all those mother-fuckers.” ’ Appellant discussed his plans to kill members of his unit with one of his supervisors for over six hours. After hearing of appellant’s comments and behavior, his platoon sergeant talked to him. Appellant told him that “he was so frustrated with the situation he had been thinking about shooting the members of his team.” As a result, appellant was removed from his position, denied access to weapons, and escorted to the division mental health officer, Captain (CPT) Darren Fong.

Appellant talked to CPT Fong twice in the Sinai. Captain Fong reported in his notes, dated 13 July 1994, that appellant “has inappropriate coping mechanisms in dealing with his anger. This morning, [appellant] said that he wanted to kill his squad and he had plans using weapons and ammunitions.” Captain Fong concluded that appellant had problems with anger and interpersonal relationships, poor coping skills, and low self-esteem, but that he was not a danger to others.

After the unit returned to Fort Bragg in August 1994, appellant met with CPT Fong. Appellant declined further counseling, and CPT Fong closed the case. Others, however, doubted appellant’s mental stability. As one lieutenant put it, “After the Sinai incident, myself [sic] and other soldiers would joke that [appellant] would be the ‘first to flip out.’ Perhaps one day in the future we would see him in a McDonalds blowing people away.”

Appellant returned to his platoon in August 1994. He attended the Primary Leadership Development Course in October 1994 and was elevated to acting squad leader the next month.

In early 1995, a childhood friend of one of appellant’s sisters lodged a criminal complaint against appellant’s father. The friend alleged that appellant’s father had sexually assaulted her in 1982 when she was fifteen or sixteen-years-old. Appellant’s father maintained his innocence, but the charges caused great stress for appellant and his family.

In March 1995, appellant was promoted to sergeant and assigned as the weapons squad leader. Appellant doubted his abilities as a leader and was concerned about the poor condition of his squad’s weapons, which he believed reflected badly on him. At the same time, many of appellant’s fellow non-commissioned officers (NCOs) and subordinates did not respect him. Some NCOs undermined appellant’s authority by telling members of his squad not to listen to or obey him. Appellant’s threats and obsession with weapons, war, and death led members of his unit to refer to him as “crazy,” “Wild Bill,” and “wacko.” As a result, appellant became “more of a loner and distanced himself from everyone.”

In June 1995, one of appellant’s sisters was seriously injured in a water jet-skiing accident. Appellant was very concerned about his sister’s recovery and her severe financial problems resulting from the accident.

In September and October 1995, appellant felt increasingly stressed. During a training exercise in late September, appellant was adversely counseled for his squad’s inadequate operation of a machine gun. During the same exercise, appellant misplaced an M-60 machine gun barrel he had carried for an injured soldier. It was found twelve hours later, but only after disrupting the exercise. His company commander gave him a letter of reprimand. Appellant also felt pressured by the unit’s preparations for an operational readiness survey and upcoming mission as part of the Division Readiness Force.

At the same time, appellant was given additional duties, including those of the company’s lock-and-key NCO. Further, he was *788told to prepare the decorations for a children’s Halloween party sponsored by his unit, even though he felt unqualified to do so because he was single and had no children. He also heard that the unit might deploy to Bosnia and his winter leave would be can-celled. Appellant felt increasingly depressed, suicidal, and angry. He had difficulty sleeping. He continued to make threats to kill his superiors and fellow soldiers.

On 26 October 1995, the day before the shootings, appellant angered his first sergeant by failing a key inspection. He asked others to help him with the Halloween party scheduled for the next night, but believed that he was alone despite evidence that his entire squad was willing to assist. That same day, his squad failed a mandatory inspection because only one soldier had all the items in a required packing list. He considered the squad’s failure his own.

Appellant decided to buy his soldiers’ missing gear with his own money. He began to think about the meals his soldiers missed because of mission requirements and the equipment they sometimes had to purchase with their own funds. His perception that the Army did not care about its soldiers fueled his anger and frustration. While he purchased the gear, he thought of “shooting up the run the next morning” to make others “stand up and take notice ... that they weren’t taking care of soldiers.”

At around 1700 on 26 October 1995, appellant gathered weapons and ammunition for the next morning’s attack, and spent the night at a motel instead of the barracks.

At 2010, appellant called SPC Mays, a member of his squad. He told SPC Mays not to buy anything for the Halloween party because there would be no party. He told SPC Mays that everyone was against him and that “he was left to put all these things together and no one would help him.” He told SPC Mays that he was going to shoot the run the following day. When SPC Mays asked appellant to explain, he said that he was going to “mow everyone down.” Specialist Mays thought appellant was joking, so he asked appellant how he was going to do it. Appellant responded that “he was going to shoot everyone.” The conversation ended when appellant told SPC Mays that he had to go and load magazines. Specialist Mays did not take appellant seriously because appellant had previously talked about killing people.

Appellant later said that although he was agitated and restless that night, he felt he was operating on “automatic pilot.” He had two goals: (1) to send a message to the Army that the upper ranks did not care about the lower ranks and that he was an NCO willing to kill and die for his men, and (2) to be killed.

The Shooting

In the darkness and fog of the early morning hours of 27 October 1995, appellant concealed himself in the wood line adjacent to Towle Stadium, located at Fort Bragg, North Carolina. Appellant was heavily armed with two semi-automatic assault rifles, two pistols, a knife, and nearly 900 rounds of ammunition, 630 of which had been loaded into magazines or the weapons. The 325th Airborne Infantry Regiment, also known as the 2d Brigade of the 82d Airborne Division, gathered in formation under the stadium’s lights for a morning run.

At 0631, appellant methodically opened fire on his fellow soldiers. He wounded eighteen soldiers and killed one. One soldier was rendered a quadriplegic. Another soldier remained unconscious for forty-five days, during which time he was subjected to multiple surgeries and his mother died. Several soldiers were shot as they attempted to stop appellant. Major Badger was killed as he rushed towards the sound of fire to find and subdue appellant. During the attack, appellant screamed, “Fuck you bastards!” and “Take that!” The viciousness of appellant’s attack was matched only by the heroism of appellant’s intended targets.

During appellant’s shooting spree, three Special Forces soldiers on a morning run— Sergeant First Class (SFC) Edward A. Mon-gold, Staff Sergeant (SSG) Robert R. Howes, and SSG Anthony M. Minor — heard shots. At great personal risk, they looked for the gunman. Sergeant First Class Mongold tackled appellant and SSG Minor jumped *789into the fray to assist him. During the tussle, appellant continued to hold on to his rifle. As SSG Howes attempted to take it from appellant, he fired three times, hitting SSG Howes in the foot. Despite his wound, SSG Howes pulled the rifle from appellant. Appellant repeatedly urged his captors, “Kill me!” A few moments later, someone asked, “Why did you do this?” Appellant continued to struggle and screamed, “Because my unit was always fucking with me____ They’re always fucking me[.] I wanted to fuck them back.” He again asked to be killed. After the military police arrived and placed appellant in handcuffs, he angrily said, “Get these fucking handcuffs off me. I’ll kill everyone.”

A military policeman escorted appellant to the local office of the Criminal Investigative Command (CID). Along the way, appellant told the driver in a bland, flat voice, “It was God’s way,” and “God told me to do it.” Appellant also asked, “How does it feel to catch a murderer? Have you ever murdered anybody?”

Appellant had parked his ear nearby the shooting site. In it was a suicide note dated 21 October:

The bad dreams just won’t end. I don’t care where I go as long as its [sic] away from here. I’m a loser who just keeps on losing. I have nothing to look forward to. Fuck the world!
Suicide is the ultimate test of faith. It shows one is ready to risk all to see if his God will accept him. I love my parents, my sisters, my brother, and my closest friends, but I must leave them. I don’t want to hurt them, but there is no other way.
AA Self-Storage — sell the contents of unit A-130 to pay for the funeral — sell my car too.

After the Shooting

When appellant arrived at the CID office, he asked to speak to CPT Fong. He was unavailable so appellant agreed to speak to CPT (Dr.) Wendi Diamond, the 82d Airborne Division psychiatrist. Captain Diamond met with appellant at about 1030. In a post-trial affidavit, she said, “Never in my life had I ever seen someone in so much psychic distress,” and that appellant “was not at all rational during our conversation.”

Captain Diamond’s ease notes, written the same day she interviewed appellant, state, in part, the following:

[Appellant] stated that he attempted to get mental health phone support last Sat and Sun night [21 and 22 October 1995], since he did not feel comfortable seeing a therapist in person. He called the Womack [Army Hospital, Fort Bragg] psychology clinic, but “no one answered the phone.” He called the Womack operator last night to ask if a psychologist was in-house but hung up the phone after being told, “no.” He decided that, the next morning, he would either go AWOL, commit suicide, or commit mass homicide “to teach his unit a lesson.” He wrote a suicide note, then called a buddy to tell him that he would not be at the next morning’s PT. [Appellant] states that he told him he would kill his command, but his buddy did not believe him since it was said in a joking manner. He asked God to stop him if he was doing the wrong thing, and since God did not stop him, decided that killing soldiers was the right thing to do.
[Appellant] drove to the PT site at 0530, waited for people to arrive, and began shooting three of his personal weapons indiscriminately, with his mind “in another world.” He stated that he was careful to avoid shooting his own squad, but thought that he was doing a favor to the soldiers he shot, since he was making them “free” of the military. He hoped he would be killed, but was instead tackled and brought to CID.

Captain Diamond described appellant, in part, as follows:

Speech was moderately pressured and loud, with normal rate. Mood was severely distraught. Affect was congruent, frequently tearful. Thought processes were linear. Thought content was significant for the statements that God has always disliked him, that the organization brainwashed him to be an assassin, and that the undersigned [CPT Diamond] could understand what he was now feeling by listening *790to the songs, “Operation Mind Crime” by Queen’s Reich and “Hallowed Be Thy Name” by Iron Maiden. He repeatedly yelled that his family would be devastated, and that he wanted to die. Perceptually, he denied auditory, visual, or tactile hallucinations, or ideas of reference. He demonstrated understanding that the interview was not confidential and that he could request to have a lawyer present.

Captain Diamond concluded that appellant’s beliefs that “God wanted him to commit murder and that he was doing soldiers a favor by killing them are possibly delusional.”

Appellant was placed in pretrial confinement, initially at the Camp Lejeune Naval Brig, North Carolina. Between the shooting and his trial, several psychiatrists and psychologists evaluated appellant:

1. 28 October 1995: Lieutenant Commander (LCDR) (Dr.) Drew Messer, a psychologist and lawyer stationed at Camp Lejeune, conducted a suicide assessment of appellant. In a post-trial affidavit, LCDR Messer stated that his “impression of [appellant’s] condition was that he was profoundly depressed” and that “there were definite mental health issues in the case.” On 3 November 1995, he faxed his suicide assessment report to one of appellant’s attorneys. Defense counsel never contacted or interviewed LCDR Messer.

2. 11 November 1995: Dr. Bob Rollins, a forensic psychiatrist retained by appellant, interviewed him for several hours and reviewed material provided by appellant’s defense counsel. His preliminary conclusion was that defense counsel should focus on appellant’s “long-standing pattern of maladaptive behavior and that this behavior pattern was known to the Army.” In Dr. Rollins’ view, the objectives were “treatment of [appellant’s] depression and mitigation of sentence.” Doctor Rollins was not retained to further assist appellant because neither appellant nor his family could afford to do so.

3. 16 January 1996: A sanity board, convened pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 706, reported its findings. The board concluded, inter alia, that appellant “did not have a severe mental disease or defect” at the time of the offenses and “was able to appreciate the nature and quality or wrongfulness of his conduct” at the time of the offenses. The board also concluded that at the time of the offenses appellant suffered from an adjustment disorder with mixed anxiety and depressed mood,3 a dysthymic disorder (early onset),4 and a personality disorder5 with narcissistic and paranoid traits.

4. 7-12 April 1996: The Forensic Psychiatry Program (FPP) at Walter Reed Army Medical Center (Walter Reed), Washington, D.C., evaluated appellant. The FPP was appointed to provide defense counsel expert assistance after the convening authority denied appellant funds to obtain a forensic psychiatrist of his choice.

On 11 April 1996, as part of the FPP’s evaluation, Colonel (COL) (Dr.) Robert S. Brown, Sr., interviewed and evaluated appellant. Colonel Brown is a forensic psychiatrist in the U.S. Army Reserves who, at the time of the evaluation, was a consultant to the FPP. Colonel Brown concluded:

*791It is my professional opinion, based upon a reasonable degree of medical certainty, that:
1. [Appellant] is chronically and seriously mentally ill.
2. The crimes which he committed are causally related to his mental illness.
3. The impulse to commit these crimes could not have been resisted by [appellant]. He knew that it was wrong to commit murder and to shoot others, however, the impulse to commit the crimes grew out of his decade of depression, suicide planning, and the perception that his last hope for living, to be a good squad leader, had been dashed: “I dint [sic] see my life ever working out. I was doubting myself as a squad leader. The only asset I had was caring enough for my squad to do something for them”: to correct the wrongs he perceived that his squad had suffered at the hands of an “uncaring higher ranks.”
4. He saw his squad as a projection of himself. In the deep recesses of his unconscious mind, he was, in a shocking series of unbroken feats, he was, [sic] by applying a mentally distorted formula, finally achieving approving recognition and acceptance, not unlike the worship a hero receives, for his damaged and flawed sense of himself, but he was also, according to his plan, ending the pain of living his life of depression, anxiety, anger, and despair which grew out of his distorted perceptions that he was no more than an ugly, ostracized and outcast weirdo.
5. He regrets what he did[;] however, the potential for future dangerousness is very great without intensive psychiatric intervention. His family [has] already observed significant improvement which is surely the result of the antidepressant Zoloft which was started recently. This must be viewed as [a] major contribution to a favorable prognosis, one that will likely be very good with the addition of psychotherapy which can only be provided in a psychiatric hospital.

The government has provided this court a post-trial affidavit from COL Brown. In his affidavit, COL Brown notes the preliminary nature of his diagnosis, that he was a consultant and not the lead forensic psychiatrist for the FPP on appellant’s case, and that he did not conduct a comprehensive evaluation of appellant. However, COL Brown does not refute his diagnosis or his statement that his opinion was “based upon a reasonable degree of medical certainty.”

At least two members of the FPP disagreed with COL Brown’s opinion: Lieutenant Colonel (LTC)(Dr.) R. Gregory Lande, Director, Forensic Psychiatry Residency, Walter Reed, and Director, FPP, and MAJ (Dr.) Stephen J. Knorr, subsequently board-certified in forensic psychiatry in 1998. The substance of their disagreement is unknown as the FPP did not reduce its findings to writing. Instead, LTC Lande and MAJ Knorr orally reported their findings to defense counsel. One of appellant’s defense counsel recalls that LTC Lande’s findings “were not all favorable” to appellant.

Regarding COL Brown’s diagnosis, MAJ Knorr stated in a post-trial affidavit, “I do not recall discussing Dr. Brown’s report with him. I do remember looking at his report; I did not concur with his conclusions.” Neither MAJ Knorr nor LTC Lande informed defense counsel of COL Brown’s diagnosis. Therefore, defense counsel never interviewed COL Brown.

THE COURT-MARTIAL

On 24 January 1996, the convening authority referred the charges to a general court-martial authorized to adjudge death. The aggravating factor authorizing a capital referral was that MAJ Badger’s murder “was committed in such a way or under circumstances that the life of one or more persons other than the victim was unlawfully and substantially endangered.” R.C.M. 1004(c)(4).

Defense Counsel

Appellant was detailed three defense counsel: MAJ James C. Gibson, CPT James A. Martin, and CPT Stephen Stokes. Captain Martin was first detailed to the case since at the time of the offenses he was assigned to the Trial Defense Service (TDS) as a defense counsel with the XVIII Airborne Corps at Fort Bragg. Major Gibson was detailed to *792the case in late November 1995. At the time, he was the Senior Defense Counsel at Fort Knox, Kentucky. Major Gibson was assigned to the case because, in his words, he “was one of the most experienced trial attorneys in the TDS Region, and also because [he] had attended a two-day course given at the Naval Justice School, in Newport, RI, on capital litigation, earlier in 1995.” Captain Stokes was assigned to TDS with the 82d Airborne Division and detailed to the case after MAJ Gibson. All three defense counsel prepared post-trial affidavits describing their experiences and roles at trial, which this court admitted as defense appellate exhibits and are appended to this opinion.

As the affidavits state, MAJ Gibson and CPT Martin were appellant’s primary defense counsel. Major Gibson was the most seasoned member of the defense team with several years of litigation experience. Captain Martin had been a trial counsel for a year and a defense counsel for six to eight months by October 1995. Neither had previously tried a capital case. Major Gibson’s capital litigation training consisted of a two-day course. Captain Martin attended a capital litigation course after his detail to appellant’s case.

Major Gibson noted that he and CPT Martin “did not explicitly divide trial duties pretrial. As a result, CPT Martin — -who was stationed locally at Fort Bragg — dealt with a lot of issues as they came up, on an ad hoc basis.” Moreover, several matters distracted MAJ Gibson from appellant’s ease, at least until March 1996:(1) his responsibilities as co-counsel in an extremely complicated case involving a judge advocate officer being tried at Fort Sam Houston, Texas; (2) his mother’s terminal illness, culminating in her death in January 1996; and (3) his physical separation from Fort Bragg.

Both MAJ Gibson and CPT Martin recognized that they needed expert assistance regarding appellant’s mental health issues and in preparing a case in mitigation. As a result, defense counsel asked for expert psychiatric assistance (and were assigned the FPP) and a mitigation specialist (which was denied).

The Trial on Findings

The trial on findings was straightforward. By his pleas of guilty, appellant admitted that he shot the victims (with the exception of SSG Howes) and that he murdered MAJ Badger by engaging in an act inherently dangerous to another.6 In effect, the government was left to prove appellant’s specific intent to kill with premeditation.

The government presented witnesses establishing that appellant was the shooter; that he had killed and wounded the victims; the severity of the victims’ injuries; that when appellant was captured he made comments such as those reported above; that he had previously threatened to kill his squad members, senior NCOs, and others, both in the Sinai and at Fort Bragg; and that a few NCOs had undermined appellant’s authority and other soldiers had ridiculed appellant, thereby upsetting him.

The defense consisted of three witnesses: Color Sergeant David Wakeland, a British soldier serving as appellant’s platoon sergeant; SPC Robert Harlan, one of appellant’s few Mends; and MAJ (Dr.) Carrol Diebold, the president of appellant’s R.C.M. 706 sanity board. Color Sergeant Wakeland testified that appellant was a slightly above average NCO; appellant’s nickname was “Crazy Kreutzer”; the unit was under stress; and appellant had been given a few additional duties. Specialist Harlan testified that he and appellant were roommates in 1993, but that he had not seen appellant often between July 1994 and October 1995; during their time in the Sinai, other troops ridiculed appellant; appellant once became so upset by this behavior that he cried and threatened to kill everyone at the site; the day before the attack, appellant was visibly upset and wanted to see CPT Fong; and appellant snapped because he could not handle the stress.

Major Diebold testified consistent with the sanity board’s conclusions. He said it was “possible” that appellant would react impul*793sively to stress. On cross-examination, MAJ Diebold said that appellant’s statements were an important part of the sanity board’s diagnosis; appellant was aware that his statements could be used against him; appellant could have misled the sanity board; appellant could have been exaggerating his disorders; appellant’s personality disorders are “moderate”; and, in his opinion, at the time of the attack, appellant could premeditate, knew what he was doing, knew right from wrong, thought clearly throughout all phases of the attack, and was rational and methodical.

On closing, the government argued appellant was a “cold-blooded killer.” The defense argued appellant’s acts were a “cry for help” and an attempt to commit suicide, rather than a premeditated design to kill. The twelve-member panel was out for two hours before returning findings of guilty as charged.

I

INEFFECTIVE ASSISTANCE OF COUNSEL ON FINDINGS

Appellant asserts he was prejudiced by his counsels’ deficient performance. In particular, he claims that defense counsel did not adequately investigate his case, did not properly use the expert assistance provided them, and did not develop a coherent and logical trial strategy. I agree.

Standard of Review

We review de novo claims that counsel were ineffective and appellant was prejudiced. United States v. Key, 57 M.J. 246, 249 (C.A.A.F.2002); United States v. Anderson, 55 M.J. 198, 201 (C.A.A.F.2001).

As our superior court has observed:

In order to evaluate properly appellant’s multiple claims, it is first necessary for us to put the case into perspective. Thus, we must carefully review every aspect of the ease and balance the claims against the total record before us. That review includes consideration of the training, experience, and abilities of trial defense counsel; the pretrial proceedings; the investigative efforts of the defense team; the selection of the court members; the trial strategy; the performance of counsel during the trial; the sentencing case; and the post[-]trial proceedings.

Murphy, 50 M.J. at 8. In exercising our responsibilities, this court, like our superior court, has “the benefit of having reviewed numerous cases over the years and developed a sense of the standards of performance that can reasonably be expected of defense counsel.” Id. Our duty is to:

ensure that fundamental notions of due process, full and fair hearings, competent counsel, and above all, a “rehable result,” are part of the equation. In the final analysis, we have heretofore examined, and shah continue to examine, the record of trial in capital cases to satisfy ourselves that the military member has received a fair trial.

Id. at 15.

Law

The Sixth Amendment guarantees that an accused shall have the “Assistance of Counsel for his defence.” U.S. Const, amend. VI. Article 27, UCMJ, 10 U.S.C. § 827, requires that an accused be detailed defense counsel when tried by a general or special court-martial. Counsel’s assistance must be effective. United States v. Russell, 48 M.J. 139, 140 (C.A.A.F.1998); see Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a capital case, established a two-pronged, conjunctive test for ineffective assistance of counsel claims: (1) was counsel’s performance deficient, and (2) did such performance prejudice the defense? To estabhsh deficient performance, appellant must show that his counsel’s performance feh below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. To estabhsh prejudice, an appellant must show that but for his counsel’s deficient performance “there is a reasonable probability that ... the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

Regarding counsel’s performance, an appellate court “must judge the reasonableness *794of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Our inquiry should be “highly deferential[ ]” to defense counsel’s performance, avoid “the distorting effects of hindsight,” and employ “a strong presumption that counsel’s conduct falls within the wide range” of professionally competent assistance. Id. at 689, 104 S.Ct. 2052. However, deference is not abdication and must not be used to insulate counsel’s performance from meaningful scrutiny. Representing an accused murderer in a capital case is a unique responsibility for a defense counsel, and the “seriousness of the charges against the defendant is a factor that must be considered in assessing counsel’s performance.” Proffitt v. Wainwright, 685 F.2d 1227, 1247 (11th Cir.1982). Moreover, merely invoking the word “strategy” to explain errors is insufficient since “particular decision[s] ... must be directly assessed for reasonableness in [light of] all the circumstances[.]” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Regarding prejudice, relief can be granted only if “counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is not whether we are certain the result would be different; rather, it is whether we find the probability of a different result “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also United States v. Burt, 56 M.J. 261, 264 (C.A.A.F.2002); Murphy, 50 M.J. at 8; United States v. Polk, 32 M.J. 150, 153 (C.M.A.1991).

Deficient Performance

At the outset, I note that appellant’s defense counsel were not unqualified merely because none had previously tried a capital case. Lack of capital litigation experience does not per se render counsel unqualified or ineffective in a capital case. Our superior court repeatedly has rejected calls that it set minimum standards for defense counsel in capital cases based on years of practice or number of cases tried. See, e.g., United States v. Gray, 51 M.J. 1, 54 (C.A.A.F.1999); United States v. Loving, 41 M.J. 213, 300 (C.A.A.F.1994); see also United States v. Cronic, 466 U.S. 648, 665, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). As our superior court did in Murphy, I have “look[ed] to the adequacy of counsels’ performance, rather than viewing the limited experience of counsel as an inherent deficiency.” 50 M.J. at 10.

Failure to Adequately Investigate

It is well-settled that “ ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ ” Wiggins v. Smith, 539 U.S. 510, -, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). Counsel’s responsibility to investigate includes interviewing witnesses that may be of value to the case. United States v. Alves, 53 M.J. 286, 289 (C.A.A.F.2000). In this case, appellant’s defense counsel did not interview several critical witnesses. As defense counsels’ post-trial affidavits make clear, the failure to interview these witnesses was not a conscious, tactical decision; it was the result of incompetence. This failure rendered defense counsels’ performance deficient and significantly contributed to their inability to develop and implement a logical strategy to defend appellant.

In particular, defense counsel never interviewed CPT Diamond, the 82d Airborne Division psychiatrist who talked with appellant for about an hour within the immediate aftermath of the shooting. Her initial impression was that appellant was “possibly delusional.” In a post-trial affidavit, CPT Diamond stated, “It must be understood that the physical and mental stresses at the 82nd were extreme. If a soldier were a little different or had trouble fitting in or keeping up, he would be harassed by other soldiers.” Regarding appellant, she said:

9. Never in my life had I ever seen someone in so much psychic distress. [Appellant] was absolutely distraught, virtually inconsolable.
10. [Appellant] was not at all rational during our conversation. His belief that his actions in shooting up a PT formation would solve what he perceived to be prob*795lems at Fort Bragg shows that he was not thinking rationally. Also, [appellant’s] conclusion — expressed to me during the conversation — that if God did not want this to happen He would intervene, is evidence of [appellant’s] irrationality and disordered thoughts.
11. Following my encounter with [appellant] that day I was never contacted either by government officials or by defense counsel. I was surprised by this, because I believed that both sides could have benefited from my assessment of [appellant’s] mental state very close to the time of the offenses.

Captain Martin stated, “I remember discussing Dr. Diamond with MAJ Gibson, and it is my recollection that MAJ Gibson was responsible for interviewing her.” Captain Martin also says he did not listen to an audiotape of the interview. Major Gibson stated he “assumed that [CPT Martin] would conduct the interview [with CPT Diamond], as he was local at Fort Bragg.” In a nutshell, each thought the other was responsible for talking to CPT Diamond and that the other had done so. This assumption is inexplicable because appellant’s counsel apparently never discussed CPT Diamond’s possible testimony or whether she should be called as a witness.

Other potential witnesses were not interviewed because of similar communication breakdowns. For example, CPT Martin thought MAJ Gibson had interviewed CPT Fong, the social worker who had treated appellant in the Sinai. As a result, CPT Martin did not interview CPT Fong and believed “that he was not called as a witness because we did not think his testimony regarding [appellant] would be mitigating.” Major Gibson said he did not interview CPT Fong because he thought “CPT Martin had spoken with him by phone.”

Defense counsel also did not interview LCDR Messer, the Camp Lejuene brig psychologist who conducted a suicide assessment of appellant the day after the shooting. Lieutenant Commander Messer concluded that appellant was “profoundly depressed” and recommended that a psychiatrist evaluate appellant for appropriate medication. In a post-trial affidavit, he said he faxed a copy of his report to one of appellant’s defense counsel, but never heard from him. He was surprised because of his belief that there were “definite mental health issues in the case.”

Failure to Properly Use Experts Provided to the Defense

As noted above, the FPP was made available to defense counsel to assist them in preparing for trial. Defense counsel stated they needed expert assistance 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 cross[-]examination of a government psychiatric witness.” See generally R.C.M. 703(d).

Defense counsel were on the right track. As one commentator has noted:

The expert can assist defense counsel by interpreting data, suggesting fertile areas for attacking the government’s case, preparing counsel to cross-examine witnesses effectively, testifying for the defense, investigating aspects of the case, serving as a sounding board to test defense theories, determining whether appropriate tests have been conducted and, if necessary, conducting additional tests.

Major Will A. Gunn, Supplementing the Defense Team: A Primer in Requesting and Obtaining Expert Assistance, 39 A.F. L.Rev. 143, 143-44 (1996) (footnote omitted); see United States v. Turner, 28 M.J. 487, 488-89 (C.M.A.1989). A psychiatrist’s or psychotherapist’s role on the defense team is to conduct an appropriate examination of the accused and assist defense counsel in the identification, evaluation, preparation, and presentation of evidence in defense or mitigation regarding an accused’s mental status. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

However, defense counsel did not use the FPP as intended. Most notable is the fact that LTC Lande and MAJ Knorr did not tell defense counsel about COL Brown’s diagnosis of appellant. Both MAJ Gibson and CPT Martin have unequivocally stated that they first heard of COL Brown’s diagnosis when *796appellate defense counsel informed them of it in February 2002. Major Knorr admitted, “I do not know whether Dr. Brown had any contact with defense counsel. I also do not know for sure whether the attorneys knew that Dr. Brown had examined their client. I am virtually certain that Dr. Brown’s report was not provided to the defense counsel.”

In effect, this failure deprived the defense of an experienced forensic psychiatrist’s diagnosis that appellant was “chronically and seriously mentally ill” and that the “crimes he committed are causally related to his mental illness.” As CPT Martin put it,

Had I known of Dr. Brown’s examination, I would certainly have discussed his conclusions with him, to determine whether Dr. Brown would be an effective witness for the defense at [appellant’s] trial, either at the findings stage or in extenuation and mitigation. At a minimum, Dr. Brown’s report would have been helpful to the defense team in developing a strategy for trial, whether or not we ultimately called him as a witness. I do not know why Dr. Brown’s examination was not discussed with me or why his report was not provided to me. It was my understanding that the [FPP] at [Walter Reed] had been appointed to assist the defense in this case and [appellant] was sent to [Walter Reed] in April 1996 to be evaluated by the doctors there in preparation for trial. MAJ Gibson and I met with Drs. Lande and Knorr, in April 1996, to discuss their evaluation of [appellant], and they did not mention Dr. Brown or his findings to us at all. I also may have had a couple of telephone conversations with Dr. Knorr.

Moreover, my reading of the record, including the post-trial affidavits of defense counsel and MAJ Knorr, leads me to conclude that the FPP did little more than give defense counsel a second opinion of appellant’s mental health at the time of the offenses and pending trial. Communications between defense counsel and LTC Lande and MAJ Knorr were sparse. Major Gibson and CPT Martin met once with MAJ Knorr and LTC Lande to discuss appellant. Captain Martin and MAJ Knorr spoke telephonieally a few times. More importantly, as CPT Martin said, “I do not remember that Drs. Lande and Knorr adequately explained to me how their findings could assist in presenting a mitigation case.” He also stated, “I do not remember if we asked them to assist in developing mitigation information, nor do I remember if they volunteered any.” The record also indicates that LTC Lande and MAJ Knorr did not interview CPT Diamond or MAJ Diebold or attend the trial. Major Knorr is uncertain whether he interviewed CPT Fong during or after the FPP’s evaluation of appellant.

It was defense counsels’ responsibility to properly and fully use its experts. If defense counsel had informed MAJ Knorr and LTC Lande of their proper role to assist the defense, it is difficult to imagine that they would not have shared COL Brown’s diagnosis with them, even if they disagreed with it. Defense counsel should have ensured that MAJ Knorr or LTC Lande talked to CPT Diamond and CPT Fong and discussed with them whether they would have been helpful witnesses. Also, it is doubtful defense counsel would have called MAJ Diebold if they had thoroughly discussed MAJ Diebold’s likely testimony. Defense counsels’ failure was deficient performance.

Failure to Develop a Trial Strategy on Findings

Defense counsel recognized they faced an uphill battle. The evidence that appellant shot many of his fellow soldiers was indisputable. To add to their difficulties, defense counsel also were unaware of COL Brown’s diagnosis and had been denied a mitigation specialist, as discussed below. They also had not interviewed CPT Diamond, LCDR Messer, or CPT Fong, and failed to properly use the FPP. As a result, defense counsel — after reviewing the R.C.M. 706 sanity board’s evaluation and talking to Dr. Rollins, LTC Lande, and MAJ Knorr — rejected appellant’s only possible affirmative defense: that he lacked mental responsibility for his actions at the time of the offenses. R.C.M. 916(k)(l). The only strategy remaining was to create a reasonable doubt that appellant lacked the mental capacity to formulate the specific intent to kill with premeditation. See Ellis v. Jacob, 26 M.J. 90 (C.M.A.1988) (discussing *797the defense of diminished capacity and R.C.M. 916(k)(2)); see also United States v. Hoskins, 36 M.J. 343 (C.M.A.1993); United States v. Berri, 33 M.J. 337, 344 (C.M.A.1991).

However, counsel did not develop or implement such a strategy. First, their failure to interview critical witnesses and effectively use their assigned experts deprived them of the information they needed to formulate an effective trial strategy. Second, they believed that the court members, all from Fort Bragg, would not be sympathetic to the “use [of appellant’s] mental health problems as an excuse” for the attack. In CPT Martin’s words:

The peculiar culture at Fort Bragg was a tremendous influence in this case. The pervasive atmosphere at Fort Bragg was that soldiers with mental health problems should not seek mental health services. Soldiers with mental health problems need to “suck it up and drive on” and failure due to mental health falls into the area of “no excuses.” This patent lack of sympathy and empathy, fostered at all levels of command, was particularly influential in steering us away from an insanity or diminished capacity defense. I honestly did not think that emotional or mental health problems would be accepted as mitigating by the court-martial panel.

Regardless of the validity of these perceptions, MAJ Gibson concluded that, as a result, he and CPT Martin essentially “failed to develop a coherent theory of the case.” Captain Martin said “their thought was to rest on ‘honor, to show remorse and responsibility.’ ” This approach effectively amounted to no strategy during the findings phase of the trial, as the trial itself illustrates.

In the end, only one expert witness on appellant’s mental health testified during the trial. Defense counsel called, on findings, MAJ Diebold even after he told defense counsel that if asked he would express his belief that appellant “was able to premeditate his actions.” Major Gibson explained, “We were aware that [MAJ Diebold] was reluctant to testify but felt that we had to put some mental health evidence on.” Major Diebold’s testimony, however, essentially proved the government’s case.

Prejudice

Even though his counsels’ performance was deficient, appellant must establish that he was prejudiced. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Testing for prejudice, we must review both the findings consistent with and contrary to appellant’s pleas. With regard to the findings consistent with appellant’s pleas, appellant must show specifically that “there is a reasonable probability that, but for counsels’] errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see Alves, 53 M.J. at 289. With regard to the findings contrary to appellant’s pleas, appellant must show that, but for counsels’ deficient performance, “there is a reasonable probability that ... the result of the proceeding would have been different[,]” thus rendering the result unreliable. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

I would affirm the findings consistent with appellant’s pleas. The military judge conducted a thorough inquiry into appellant’s pleas in accordance with United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247, 1969 WL 6059 (1969). Appellant’s responses, made under oath, were consistent with his pleas and supported by the entire record. Appellant has not provided this court with any evidence that the affirmative defense of lack of mental responsibility would have been available to him or any other matter that would have influenced him to plead not guilty if counsels’ performance had not been deficient. See Alves, 53 M.J. at 289-90. Thus, there is no reasonable probability that appellant would have insisted on going to trial but for his counsels’ errors. See Hill, 474 U.S. at 59, 106 S.Ct. 366; Alves, 53 M.J. at 289.

The findings contrary to appellant’s pleas are a different matter. Appellant’s not guilty pleas required that the government prove that appellant had the specific intent to kill with premeditation. Appellant would remain eligible for the death penalty only if the members unanimously found appellant guilty of premeditated murder. R.C.M. 1004(a)(2). Appellant has presented us evidence that his *798defense counsel could have used to create reasonable doubt in the mind of at least one member regarding his capacity to formulate such an intent. The cumulative effect of defense counsels’ failures to adequately investigate, to effectively use their assigned experts, to develop and implement a realistic trial strategy to create reasonable doubt, and to present any mental health evidence other than the devastating testimony of MAJ Die-bold effectively resulted in a concession of “guilty as charged.” See Jennings v. Woodford, 290 F.3d 1006, 1019 (9th Cir.2002) (finding trial defense counsel’s failure to develop and consider information about accused murderer’s fragile and faffing mental health— information directly related to defendant’s capacity to premeditate — rendered conviction of premeditated murder unreliable). The findings contrary to appellant’s pleas are unreliable, and they and the sentence should be set aside.

II

MITIGATION SPECIALIST

The military judge erred by denying appellant the services of a mitigation specialist. In my opinion, this error, coupled with defense counsels’ ineffectiveness, prejudiced appellant in regard to those findings contrary to his pleas.

Standard of Review

We review a military judge’s ruling on a request for expert assistance for an abuse of discretion. United States v. McAllister, 55 M.J. 270, 275 (C.A.A.F.2001); United States v. Gunkle, 55 M.J. 26, 32 (C.A.A.F.2001); United States v. Ford, 51 M.J. 445, 455 (C.A.A.F.1999); United States v. Short, 50 M.J. 370, 373 (C.A.A.F.1999); United States v. Houser, 36 M.J. 392, 397 (C.M.A.1993) (declining to set aside a military judge’s decision unless it forms a “definite and firm conviction that the court below committed a clear error of judgment”).

Law

The Supreme Court, in Ake, 470 U.S. at 77, 105 S.Ct. 1087, recognized that the Due Process Clause of the Constitution requires that a criminal defendant be provided expert assistance when such assistance is necessary for a fair trial. This principle, likewise, applies to the military. UCMJ art. 46; R.C.M. 703(d); United States v. Garries, 22 M.J. 288, 290 (C.M.A.1986) (expert assistance is a matter of military due process when necessary for a fair trial).

Our superior court has adopted a three-pronged test to establish whether an accused is entitled to expert assistance. United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A.1994). The defense must show: (1) why the expert is needed; (2) what the expert would accomplish for the defense; and (3) why defense counsel is unable to gather and present the evidence that the expert assistance would develop. Id.; see also Ford, 51 M.J. at 455; Short, 50 M.J. at 373. An accused must demonstrate to the trial court that there is a reasonable probability that an expert would be of assistance and that denial of expert assistance would result in a fundamentally unfair trial. Gunkle, 55 M.J. at 31-32 (citations omitted). Once an accused has satisfied this burden, the government must provide “competent” expert assistance. United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F.1996).

Capital referral alone does not mean an accused requires or is entitled to expert assistance. Gray, 51 M.J. at 1. ‘While use of an analysis prepared by an independent mitigation expert is often useful, we decline to hold that such an expert is required. What is required is a reasonable investigation and competent presentation of mitigation evidence.” Loving, 41 M.J. at 250; see also Garries, 22 M.J. at 290 (refusing to hold that a capital referral necessarily requires the expert assistance of an investigator). However, military judges should consider counsels’ experience when determining whether expert assistance is necessary. This is particularly true in capital cases. See generally Dwight H. Sullivan, et al., Raising the Bar: Mitigation Specialists in Military Capital Litigation, 12 Geo. Mason U. Civ. Rts. L.J. 199 (2002); Major David D. Velloney, Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases, 170 Mil. L.Rev. 1 (2001).

*799Test for Prejudice

As the right to expert assistance is based on an accused’s constitutional right to due process, as well as military due process based on Article 46, UCMJ, deprivation of those rights is an error of constitutional magnitude. Our superior court has stated that the test for prejudice when expert assistance has been wrongly denied is “whether the court-martial’s findings of guilty were ‘substantially swayed by the error.’” McAllister, 55 M.J. at 276 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). But see Ake, 470 U.S. at 86-87, 105 S.Ct. 1087 (reversing and remanding case for a new trial because denial of expert assistance deprived defendant of due process; no test for prejudice stated); United States v. Crews, 781 F.2d 826, 834 (10th Cir.1986) (requiring reversal and a new trial where expert assistance wrongfully withheld was indispensable to a fan- trial). Therefore, I am bound to apply the Kotteakos test for prejudice. See United States v. Allbery, 44 M.J. 226, 227-28 (C.A.A.F.1996).

Discussion

Defense counsel satisfied all three prongs of Gonzalez. Therefore, the military judge abused his discretion by denying appellant necessary expert assistance.

Necessity

Lacking any capital litigation experience, defense counsel recognized early why they needed the assistance of a mitigation specialist and that they were not qualified to perform this function. As MAJ Gibson stated,

From my limited knowledge about capital cases at the time [of appellant’s court-martial], I did understand that it was important for the defense to put on a case in mitigation, and that employing a mitigation expert was one of the most effective ways of preparing a mitigation case. I did not know at the time how crucial such assistance is in capital eases.

Captain Martin said that after “meeting [appellant] and walking the crime scene, [he] immediately recognized that [he] needed expert assistance in preparing a mitigation investigation, in anticipation of putting on a mitigation ease at trial.”

On 11 March 1996, CPT Martin requested that the convening authority appoint a mitigation specialist to “assist the defense as an expert in the area of mitigation investigation.” In pertinent part, the request said:

2. [Appellant] requires the services of a mitigation specialist. Mitigation investigation is an inter-disciplinary, scientific analysis of the psycho-social history of an individual accused in a capital case. Specialists in this area can conduct more extensive interviews of [appellant], his family, and anyone else who may have relevant background information on him. Such an examination and analysis would discover the significant contributing events or factors in [appellant’s] life that may have effected [sic] his mental health at the time of the offenses charged. Recent capital cases have approved of such mitigation experts.
3. Defense counsel lack the experience and scientific expertise to uncover all potentially mitigating events or factors in [appellant’s] case. It is therefore necessary to enlist the assistance of such an expert to insure [appellant] receives a fan-trial with all relevant information brought before the panel.

Captain Martin attached to the request a fourteen-page affidavit from Dr. Lee Norton, a mitigation specialist who had worked on approximately forty-five capital cases. The affidavit described in detail the expert assistance that a mitigation specialist would have provided appellant’s inexperienced defense counsel.

On the advice of his SJA, the convening authority denied the request on 22 March 1996, but provided defense counsel funds so they could investigate appellant’s mitigation case. At trial, defense counsel filed a motion requesting that the military judge order funds be provided for a mitigation specialist. Citing Loving, 41 M.J. at 250, the military judge simply held that “I don’t find the showing requiring me to order one.” He made no findings of fact.7

*800Senior Judge Chapman notes that Dr. Norton had prepared his affidavit for a different case. He also observes that the affidavit “described how a mitigation specialist could retrieve records, conduct interviews, analyze documents, interpret data, and organize findings,” implying mitigation specialists do no more. Senior Judge Chapman’s central point appears to be that, while appellant “argues that his trial defense team lacked the experience and expertise needed to perform those tasks,” appellant has not explained why his defense counsel, the FPP, and a military police investigator could not have achieved substantially “the same results as a mitigation specialist.”

I disagree with this assessment of defense counsels’ request. Doctor Norton’s affidavit states that mitigation specialists have “special skill and experience that the attorneys and other experts generally do not” (1) to obtain, analyze, organize, and summarize huge amounts of information about an accused and his family that cuts across many disciplines, including medicine, psychology, forensics, and law enforcement; (2) to identify the “inherited impairments and patterns of dysfunction” of an accused’s life that reveal the “cumulative effect of such influences”; .and (3) to assist counsel in determining the best way to explain to the court an accused’s impairments and their effects on him. Doctor Norton’s affidavit describes the critical role mitigation specialists fulfill in capital cases and defense counsels’ inability to perform those functions. While I agree with my dissenting brother that it is defense counsels’ responsibility to present mitigation evidence on behalf of an accused, an accused and his counsel are entitled to expert assistance when necessary in order to effectively meet those responsibilities.

The question of whether the military judge abused his discretion must be placed in context. The military judge knew this was a capital case and that capital cases in the Army are extremely rare. He reviewed defense counsels’ officer record briefs and knew or should have known that the litigation experience of two of the three defense counsel was limited. He knew that none of appellant’s defense counsel had previously tried a capital case. When the military judge made his ruling, he was familiar with the basic facts of this case. He knew appellant indiscriminately shot up a brigade run on 27 October 1995, wounding many and killing one. He knew the comments appellant made upon and immediately after his capture. As an experienced jurist, he knew that appellant’s mental state at the time of the shooting would present the primary issue on findings. All this was relevant to whether defense counsel needed the requested expert assistance.

Defense counsel established why they needed the expert assistance (appellant’s mental health at the time of the offenses was the singular issue on findings); what the expert would accomplish (discover, analyze, and develop evidence of the significant contributing factors that affected appellant’s mental health at the time of the offenses); and why defense counsel could not perform this task (no training or expertise). See Gonzalez, 39 M.J. at 461. Defense counsel established the necessity for expert assistance. The military judge abused his discretion by denying appellant such assistance. See Gunkle, 55 M.J. at 32.

Prejudice

On appeal, this court ordered that funds be provided to appellant to retain a mitigation specialist. Appellate defense counsel provided us the interim report. The mitigation specialist reviewed all previous mental health assessments of appellant. She exhaustively *801described appellant’s family history, the development of his mental health problems, and the circumstances leading to the offenses. She concluded, in pertinent part, that appellant: (1) suffered from chronic depression with features of anxiety; (2) has an avoidant personality disorder; and (3) at the time of the offenses, experienced an adjustment disorder, the essential feature of which is “the development of clinically significant emotional or behavioral symptoms in response to identifiable psychological stressors or stressors.” In appellant’s case, the mitigation specialist explained that the stressors included the sexual assault charge lodged against his father, his sister’s accident, the constant ridicule of peers and subordinates, the overwhelming demands of appellant by the military, and his failures as an NCO and soldier.

The government is correct that the reports of the mitigation specialist and the R.C.M. 706 sanity board do not differ significantly in their descriptions of appellant’s life. It does not follow, however, that appellant was not prejudiced. A mitigation specialist would have brought more to this defense team than just the results of her investigation. She would have provided these inexperienced counsel an “inter-disciplinary, scientific analysis” of appellant’s “psycho-social history” and of the events leading to the offenses. She almost certainly would have found and interviewed critical witnesses, such as CPT Diamond and COL Brown, and evaluated their potential contributions to the defense case. A mitigation specialist would have ensured that the defense team fully and appropriately used all experts assigned to it. She would have assisted in the formulation of an effective trial strategy based on all the evidence, both on the findings and the sentence. She would have helped defense counsel effectively present appellant’s case and attack the government’s. The mitigation specialist would have helped defense counsel explain to the members why a law-abiding soldier suddenly turned into a murderer. In sum, the military judge’s error depriving these defense counsel this expert assistance, coupled with counsels’ ineffectiveness, “substantially swayed” the findings.

While I recognize that the law does not require a mitigation specialist in every military capital case, the law does require that every military accused be provided effective assistance of counsel. In capital cases defended by counsel of limited, if any, capital litigation experience, it is prudent that staff judge advocates, convening authorities, and military judges provide the defense team the expert assistance it needs to effectively defend the accused, and thereby render the results of trial reliable. That did not happen in this case.

CONCLUSION

As our superior court said in Murphy, in the “final analysis, we have heretofore examined, and shall continue to examine, the record of trial in capital cases to satisfy ourselves that the military member has received a fair trial.” 50 M.J. at 15. I do not believe this appellant received a fair trial, and, therefore, agree we should set aside the findings inconsistent with appellant’s pleas and the sentence and authorize a rehearing.

. See generally Major Mary M. Foreman, Military Capital Litigation: Meeting the Heightened Standards of United States v. Curtis, 174 Mil. L.Rev. 1 (2002).

. The information in this section is drawn from the entire record of trial, including the allied papers, numerous sworn statements taken soon after the shooting from soldiers in appellant’s unit, and appellate exhibits. See Murphy, 50 M.J. at 5-6 (Our superior court considered the record of trial and numerous post-trial affidavits as one of a "variety of procedures to ensure that a military accused's rights are fully protected.”).

. "The essential feature of an Adjustment Disorder is the development of clinically significant emotional or behavioral symptoms in response to an identifiable psychosocial stressor or stressors." Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders [hereinafter DSM-IV], at 623 (4th ed.1994). Adjustment disorders are coded to the subtype that best characterizes the predominant symptoms. Id. "With mixed anxiety and depressed mood" is used when the predominant manifestations are symptoms such as "nervousness, worry, or jitteriness” (anxiety) and "depressed mood, tearfulness, or feelings of hopelessness” (depressed mood). Id. at 623-24.

. "The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs for most of the day more days than not for at least 2 years...." DSM-IV at 345. "Early onset” means the symptoms occur before the age of twenty-one. Id. at 346.

. A personality disorder is an "enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture." DSM-IV at 633. The enduring pattern is inflexible and pervasive, leads to clinically significant distress or impairment in important areas of functioning, and is stable and of long duration. Id.

. As noted in the lead opinion, appellant also pled guilty to violating a lawful general regulation (wrongfully transporting loaded firearms) and larceny (stealing ammunition and pyrotechnics), in violation of Articles 92 and 121, UCMJ.

. It is unclear what the military judge meant by his reference to Loving. In Loving, a capital *800murder case, defense counsel decided not to present expert mitigation testimony as a tactical choice because they were concerned that the expert would reveal his opinion about Loving’s sociopathic personality on cross-examination. 41 M.J. at 250. Our superior court concluded that defense counsel’s decision to not present expert mitigation testimony was reasonable. Id. On appeal, Loving contended that "mitigation experts are essential for capital murder cases," to which the court responded, "While use of an analysis prepared by an independent mitigation expert is often useful, we decline to hold that such an expert is required.” Id. The relevance of this holding to appellant’s case is limited. Regardless, I assume that the military judge knew and correctly applied the law and have, accordingly, reviewed his ruling for an abuse of discretion. See Gunkle, 55 M.J. at 32.