concurring in part and dissenting in part.
I agree with the majority that appellant’s trial defense counsel were ineffective in their representation of appellant at the sentencing stage of appellant’s court-martial. I concur with their conclusion that there exists a “reasonable probability” that appellant’s sentence would have been different but for counsels’ deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).1
*802I must disagree, however, with the majority’s conclusion that the military judge erred by denying the defense request for a mitigation specialist. In my opinion, the defense did not sufficiently explain the need for such a specialist.
We review a military judge’s decision on requests for expert assistance for abuse of discretion. 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). The accused has the burden to demonstrate a necessity for an expert’s services. United States v. Garries, 22 M.J. 288, 291 (C.M.A. 1986); see also Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). An accused is not • automatically entitled to a mitigation specialist in every capital case. See United States v. Loving, 41 M.J. 213, 250 (C.A.A.F.1994); Garries, 22 M.J. at 291. Our superior court has adopted a three-pronged test to determine when an expert’s assistance is necessary:
First, why the expert assistance is needed. Second, what would the expert assistance accomplish for the accused. Third, why is the defense counsel unable to gather and present the evidence that the expert assistant would be able to develop.
Ford, 51 M.J. at 455 (quoting United States v. Gonzalez, 39 M.J. 459, 461, cert. denied, 513 U.S. 965, 115 S.Ct. 429, 130 L.Ed.2d 342 (1994)).
An accused must demonstrate more than a mere possibility that an expert is necessary for counsel to present an adequate defense. United States v. Robinson, 39 M.J. 88, 89 (C.M.A.1994). An accused must show “that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987). See United States v. Gunkle, 55 M.J. 26, 31-32 (C.A.A.F.2001); Kelly, 39 M.J. at 237-38. Defense counsel must establish a “nexis between the facts and circumstances of [an accused’s] case and the need for a [mitigation specialist].” United States v. Warner, 59 M.J. 573, 579 (A.F.Ct.Crim.App.2003).
Here I find that the defense counsel did not make the requisite showing of necessity for a mitigation specialist.2 The defense request for a mitigation specialist consisted of a one-page memorandum where counsel explained that the defense needed the services of such an expert to conduct interviews that may reveal “significant contributing events or factors in SGT Kreutzer’s life that may have effected [sic] his mental health at the time of the offenses charged.” (R. at Appellate Exhibit 51). Attached to this generic request was a copy of an affidavit made by a mitigation specialist in a wholly, unrelated ease. That affidavit generally described the role of a mitigation specialist, to include how a mitigation specialist could retrieve records, conduct interviews, analyze documents, interpret data, and organize findings. Although appellant argues that his trial defense team lacked the experience and expertise needed to perform those tasks, appellant has not explained to my satisfaction why three judge advocates, a military police investigator, and the Walter Reed Forensic Psychiatry Program, could not substantially achieve the same results as a mitigation specialist. “Defense counsel are expected to educate themselves to attain competence in defending an issue presented in a particular case.” United States v. Kelly, 39 M.J. 235, 238 (C.M.A.1994); Short, 50 M.J. at 373. Furthermore, the “[presentation of mitigation evidence is *803primarily the responsibility of counsel, not expert witnesses.” Loving, 41 M.J. at 250.
In appellant’s case, I see no showing that the services of a mitigation expert would have affected the reliability of the adjudged findings. I would require a greater showing of necessity than what counsel presented at trial. Thus, I would hold that the military judge did not abuse his discretion in denying appellant’s request for a mitigation specialist.
Accordingly, I would affirm all of the findings, set aside the sentence, and authorize a rehearing on the sentence by the same or different convening authority.
APPENDIX
• Affidavit of Major Gibson
• Affidavit of Captain Martin
• Affidavit of Captain Stokes
AFFIDAVIT
The Affiant, James C. Gibson, Jr., after first being duly sworn, makes the following statement:
I was one of the attorneys who represented SGT William J. Kreutzer, Jr., at his general court-martial on capital charges at Fort Bragg, North Carolina. The offenses occurred in October 1995. I believe that I was detailed to the case in late November, 1995. At the time I was detailed to the Kreutzer case, I was assigned as the Senior Defense Counsel at Fort Knox, Kentucky. I believe I was assigned to the Kreutzer case because I was one of the most experienced trial attorneys in the TDS Region, and also because I had attended a two-day course given at the Naval Justice School, in Newport, RI, on capital litigation, earlier in 1995. At the time, this two-day course was the extent of my knowledge or training about handling capital cases.
I am currently a public defender in the Capital Trial Branch, Department of Public Advocacy, Frankfort, Kentucky. My office, absent unique circumstances, is assigned only to cases in which the death penalty is being sought. I have been with this office since 1997. During this period, I have been sent to four separate specialized training
courses in defending death penalty cases. In addition, I have access to an extensive capital defense library, including capital trial manuals from numerous states. In my current capacity, I have personally worked on between 20 and 30 cases in which the death penalty was being sought. I have been defense counsel in four trials that resulted in death sentences.
Based on the experience and training I have obtained in capital case representation since I left active duty, I now seriously question whether I was professionally prepared to try SGT Kreutzer’s case. Although we did not realize it at the time, I believe none of us on the defense team — neither CPT Tony Martin nor CPT Steve Stokes nor me — had the professional training or experience necessary to try a capital case, nor were we provided with the resources or the time to prepare a meaningful defense. This lack of training and experience quite possibly resulted in Sergeant Kreutzer being sentenced to death.
I feel that my representation of SGT Kreutzer was hindered by the fact that I was not stationed at Fort Bragg, where the offenses took place and where the convening authority was. Between the time I was assigned to the case, in late 1995, and the date of the trial, in June 1996, I spent no more than three weeks at Fort Bragg. I first went to North Carolina in late November, 1995. This was about a month after the offenses, and SGT Kreutzer was confined at the Camp Lejeune brig. During the pretrial phase of the trial, in early 1996, I was co-counsel in an extremely complex contested case at Fort Sam Houston, Texas, which involved a mental responsibility defense and in which the accused was a judge advocate officer. This other case had been ongoing for more than a year. I was tied up with the preparation and trial of that case from the beginning of 1996 until the first of March (sentence was announced on 29 February 1996). As a consequence, I was unable to give undivided attention to SGT Kreutzer’s case. During this time, motions in SGT Kreutzer’s case were being filed, issues arose, hearings were held, and I was more *804than 1000 miles away, deeply immersed in an unrelated trial.
CPT Martin and I did not explicitly divide trial duties pre-trial. 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. I do recall that we agreed that CPT Martin would take the lead in issues involving contact with and interviews of SGT Kreutzer’s family. I now believe this led to a number of instances of lack of communication and a situation in which we failed to develop a coherent theory of the case.
Additionally, throughout the winter of 1995-96, my mother was terminally ill with cancer. We moved her into my home where, with the assistance of a local Hospice organization, we could care for her at the end. She died on January 23, 1996. Her last few months were very difficult, and there was significant stress from the emotional and physical difficulties of caring for her. Almost immediately after her death, I went to Texas for the Fort Sam Houston case, returning only after the verdict had been rendered in that case.
Because of the distance, I was unable to communicate with co-counsel in the Kreutzer case, CPT Martin, as much as I would have liked. He was assigned to TDS at Fort Bragg, and he had been detailed to SGT Kreutzer’s case immediately after the offenses occurred. I relied on CPT Martin to do a lot of the groundwork in preparation for trial, but we probably did not speak to each other as much as we should have. As a result, our trial preparation probably suffered and was not as thorough as it could have been. Specifically, there were witnesses who probably should have been interviewed who were never interviewed by any of SGT Kreutzer’s defense counsel (CPT Wendi Diamond, the 82d Airborne Division psychiatrist, and CPT Darren Fong, the medical service corps social worker who assessed SGT Kreutzer in the Sinai, are examples). CPT Stokes, who was also at Fort Bragg (in TDS with the 82nd Airborne) came into the case late. He made the opening statement at trial and also assisted us in other ways, but he did not play a major role in case preparation.
As the case developed, I became very concerned about the large number of R.C.M. 802 (off record) sessions with the military judge. I also felt that I was being rushed to trial, and that more time was needed to prepare for trial. I got the strong impression that the judge was determined to try the case before he was reassigned in summer 1996 and that he would not have tolerated a delay. I discussed these concerns with CPT Martin, who told me that that was the way the way the judge, COL Brownback, always ran his court, referring to the extensive 802 sessions. I remember mentioning my concern about the 802 sessions with the judge, probably informally or in an 802 session, and he responded that was the way he liked to do things to ensure there were no surprises when we were in the courtroom. In retrospect, I should have formally objected to the large number of substantive issues that were discussed in 802s, and I probably should have sought a writ at the appellate courts to force the judge to stay on the record. Quite frankly, I frequently felt like an outsider — there seemed to be a lot of camaraderie between the judge and trial counsel, and even with CPT Martin, all of whom seemed to identify strongly with Fort Bragg and the “Airborne” community.
I was also concerned about the atmosphere at Fort Bragg, and I strongly felt a change of venue was not just appropriate, but necessary for a fair trial. Fort Bragg was, in my opinion, a very “macho” post. There seemed to be a real feeling that the shootings were an attack on the entire “Airborne” family. This feeling was not just evidenced by personnel from the 82nd Airborne Division, but from anyone associated with the post. Everyone on the panel, it seemed, had served at Bragg multiple times, often in airborne assignments. From my perspective, the “Airborne” mentality permeated everything, even the trial. We litigated a change of venue motion, but it was denied. From then on I felt that we were definitely fighting an uphill battle, both as to findings and sentence.
From my limited knowledge about capital cases at the time, I did understand that it *805was 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 cases. In my current office in Kentucky, for example, a mitigation specialist is assigned to every capital case, without exception. Early on in the case, we felt the need for such expert assistance from a forensic social worker or someone else with similar experience. We felt in this particular case the assistance of such an expert was required because, as attorneys, we did not possess any requisite training or knowledge to conduct an extensive social history investigation for the extenuation and mitigation phase of a capital case. We felt we needed expert assistance to help us — and subsequently a court martial panel — understand why the offenses occurred and to place that information in the context of various legal, scientific, and social disciplines. Based on the limited knowledge I had, I believed that it was only if we could adequately explain why SGT Kreutzer committed these offenses that we had any hope of avoiding a death sentence.
I submitted a request for a mitigation expert to the military judge, which was denied. As far as I know, the motion for a mitigation expert submitted in March 1996 was the first attempt to secure such assistance. As a result of the military judge’s denial of the funding for expert assistance, it was left to CPT Martin and me to do this massive and important work on our own, without any training or assistance from anyone with experience. Of course, we were required to take on this task in addition to the rest of the work of preparing ourselves and our client for a capital trial, a mere 90 days or so before the trial.
Without the benefit of any expert assistance, CPT Martin did most of the work in order to prepare what we considered to be a mitigation investigation. We decided to concentrate the investigation in three separate areas: 1) SGT Kreutzer’s family and developmental history; 2) psychological and psychiatric information; and 3) his military career. Our interviews with SGT Kreutzer and his family and development of his life history totaled approximately 20 hours during the period from December 1995 to June 1996. We also interviewed friends, teachers, and others mentioned by the Kreutzers. We probably did not focus enough attention on his mental health problems.
Our investigation into SGT Kreutzer’s mental condition focused primarily on the examinations conducted by Dr. Diebold at Fort Bragg and Drs. Knorr and Lande at Walter Reed Army Medical Center (WRAMC). I do not recall investigating Drs. Knorr or Lande’s qualifications, but accepted them as the proffered experts the government made available. My recollection is that the judge made the suggestion for the defense to utilize them in an 802 session, and it may have been more than a suggestion. In other words, it is quite possible that the judge told us they would be our experts and left us no other option. I recall that the judge made a telephone call in his chambers, with defense counsel and trial counsel present, to Dr. Lande and discussed the possibility of his participation in the case.
With regard to our discussions with these individuals, I believe we focused primarily on the issue of mental responsibility at the time of the offenses rather than discussing mental health issues as potential mitigation. I do not recall specifically what, if any, information or materials we provided to Drs. Knorr and Lande other than what they already had (such as copies of the article 32 investigation, the charge sheet, and SGT Kreutzer’s medical records). I believe they did meet with several members of the Kreutzer family at WRAMC. At one point CPT Martin mentioned that a Dr. Rollins, whom SGT Kreutzer had privately retained, had done a preliminary examination on SGT Kreutzer. However, I do not recall seeing a report and I do not believe I ever spoke to Dr. Rollins.
Before we began working with the doctors at WRAMC, we did ask the military judge for funding for an independent mental health expert but that, too was denied. Though my recollection was that we asked for funding for Dr. Rollins, I am told that we asked for funding for Dr. David Marcotte, whom I *806believe was recommended by Mark Waple, a local attorney. Dr. Rollins saw SGT Kreutzer before I became involved in the case. I recall speaking with CPT Martin about Dr. Rollins and his recommendations, including his recommendation that Kreutzer not make any significant decisions in the case until his depression was under control. We were then left with Dr. Diebold, who had done the sanity board, and the two doctors at WRAMC offered by the military judge.
Within the past few days I learned that the forensic psychiatrists at WRAMC, Drs. Lande and Knorr, had had SGT Kreutzer examined by Dr. (COL) Robert S. Brown. I was provided a copy of Dr. Brown’s report (dated April 11,1996) on February 3, 2002 by COL Odegard. I can unequivocally say that until then I had never heard of Dr. Brown, had no knowledge that he had examined my client SGT Kreutzer, and was unaware of Dr. Brown’s conclusions regarding SGT Kreutzer’s mental state on the date of the offenses. Had I known of Dr. Brown’s examination, I believe I would certainly have discussed his conclusions with him, to determine whether Dr. Brown would be an effective witness for the defense at SGT Kreutzer’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 have no idea why Dr. Brown’s report was not provided to me. After all, the forensic psychiatry program at WRAMC had been appointed to assist the defense in this case and SGT Kreutzer was sent to WRAMC in April 1996 to be evaluated by the doctors there in preparation for trial. Captain Martin and I met with Drs. Lande and Knorr at WRAMC, probably late in April 1996, to discuss their evaluation of SGT Kreutzer, and they did not mention Dr. Brown or his findings to us at all.
I knew that Dr. (CPT) Wendi Diamond, the 82nd Airborne Division psychiatrist, had spoken with SGT Kreutzer on the day of the offenses but I did not interview her. I had a copy of the transcript of her interview with SGT Kreutzer, and I believe I also may have listened to a tape of that interview. I knew that she was represented by an attorney, Mark Waple (the same attorney who was co-counsel on the ease I was trying at Fort Sam Houston). I thought that CPT Martin had spoken to her attorney about interviewing her, and I believe I assumed that he would conduct the interview, as he was local at Fort Bragg.
I did not interview CPT Fong either, whom I believe was stationed in Korea during this pretrial period. I believe that CPT Martin had spoken with him by phone. We knew that CPT Fong was not a licensed psychologist.
I do not recall anything about a suicide attempt SGT Kreutzer made in February 1996, while in pre-trial confinement. I do not recall obtaining any reports from brig personnel, discussing SGT Kreutzer with any of the brig social workers, counselors, or chaplains, and or knowing at that time that an individual’s adjustment to confinement can be powerful mitigating evidence in a capital case. Had I seen Dr. Brown’s report, I would have known about SGT Kreutzer’s history of depression and repeated suicidal thoughts and suicide rehearsals.
I do recall talking with SGT Kreutzer about a guilty plea, but I cannot recall whether the government had made a guilty plea offer. Early in the preparation phase CPT Martin was recommending a plea in exchange for a life sentence; SGT Kreutzer was still depressed and focused on wanting to die. I recall conversations with CPT Martin about getting SGT Kreutzer stabilized so he could take a more active role in making decisions in his own interest. In the spring of 1996 we discussed with the prosecutors an offer to plead guilty in exchange for a life sentence, but the prosecutors told us that the convening authority would not agree to such an offer. I do not remember whether we ever submitted a written offer to plead.
Our investigation into SGT Kreutzer’s military background and career involved interviews with members of his unit and his chain of command and obtaining various documents from his military files. The interviews had a double purpose — both for during the merits phase and also during the penalty phase of *807the trial. CPT Martin and I did travel to Maryland in late April 1996 and discussed the case with SGT Kreutzer’s family. Captain Martin had made at least one previous trip to Maryland to conduct interviews and meet with the Kreutzer family. We discussed at trial whether to call SGT Kreutzer’s father as a witness, but the father told us he would not testify. We knew that SGT Kreutzer’s father was pending serious criminal charges at the time of the offenses but did not obtain any records pertaining to that. I recall preparing the family member witnesses for trial. I remember meeting with Mrs. Kreutzer at her hotel and going through questions with her.
In general, our penalty phase strategy was to portray SGT Kreutzer as a decent person from a good family, a good soldier, not criminally oriented, who had some mental health issues not resolved by the army. I do not recall specifically preparing for victim impact evidence, and while we did interview some victims of the shootings, I know we did not talk to any of the victims who testified in the sentencing phase of the trial.
In the merits phase of the trial we called Dr. Diebold as a witness. We were aware that he was reluctant to testify but felt that we had to put some mental health evidence on. We had not interviewed Dr. Diamond, and Dr. Lande’s findings, as I recall, were not all favorable to SGT Kreutzer. In retrospect, Dr. Diebold was not an effective witness for the defense. I do not recall what information we provided him about SGT Kreutzer or his family.
I feel our lack of knowledge and experience in capital case litigation probably evidenced itself most strongly in the penalty phase of the trial. In retrospect, I believe that we did not have a grasp of the significance of SGT Kreutzer’s mental health issues at the time of the offenses and how those issues would have been helpful in building a mitigation case. I believe now that this was a weakness in our defense of SGT Kreutzer, caused by our lack of experience in capital cases and exacerbated by the fact that we were denied a mitigation expert who likely would have had the insight to recognize the importance of the mental health issues.
In summary, I believe now, in retrospect, that our representation of SGT Kreutzer was crippled from the start because we did not have the experience, the training, the resources, or the time to mount an effective defense in his case. Our problems were made much more difficult by the government’s unwillingness to provide us with the experts we needed.
AFFIDAVIT
The affiant, James Anthony Martin, after first being duly sworn, makes the following statement:
I represented SGT William J. Kreutzer, Jr., at Fort Bragg, North Carolina, from October 27, 1995 (the date of the offenses) through the announcement of sentence in June 1996 at his general court-martial. I was the first defense counsel to enter an appearance in SGT Kreutzer’s case. My Senior Defense Counsel assisted me in the early stages of representation, but he did not enter an official appearance at any time that I can remember. I was responsible for the initial investigation and preparation for trial. Later, after two other attorneys were added to SGT Kreutzer’s defense team, I was assigned to investigate and prepare the extenuation and mitigation phase of the trial. Ultimately, SGT Kreutzer was convicted in June 1996 of premeditated murder (one specification) and 18 specifications of attempted premeditated murder. He was sentenced to death.
I received my Bachelor of Science degree in 1984 from the State University of New York, College at Purchase, majoring in chemistry. From 1984 to 1988 I was an officer on active duty in the United States Marine Corps. I received an Honorable Discharge from the Marine Corps in the 1990-1991 time-frame at the rank of Captain. I attended Pace University School of Law, White Plains, New York during 1988-1992. I worked in law offices full time during law school and attended Pace’s night program. I was assigned to Fort Bragg in late 1993 after completing airborne training at Fort Benning. I completed a quick tour at XVIII *808Airborne Corps legal assistance (six months), and then was assigned as trial counsel for one year. As trial counsel I prosecuted courts martial, was trained and appointed as a Special Assistant United States Attorney, and advised various commands at Fort Bragg for one year. I deployed with an engineer brigade in support of Operation Uphold Democracy in the Republic of Haiti. I then requested transfer to a position as trial defense counsel at Fort Bragg. At the time of SGT Kreutzer’s offense, I was assigned to the Trial Defense Service (TDS) office at XVIII Airborne Corps, and had been a defense counsel for six to eight months. I was on active duty for a little over three years (until September 1996), and then went into the active reserves. I am still a member of the active reserves. I am a Major, with duties as the Deputy Staff Judge Advocate for the United States Army Civil Affairs and Psychological Operations Command (Airborne), Troop Program Unit, at Fort Bragg. In the civilian sector I am an Assistant Federal Public Defender in the Eastern District of North Carolina. I am a federal employee, with a practice limited to representing indigent criminal defendants in federal court.
Prior to representing SGT Kreutzer, I had no experience with homicide cases, much less capital defense. When the offenses occurred, I was TDY at a training program away from Fort Bragg. Most of the TDS officers from Bragg were also at the program, as was LTC Peace, the Regional Defense Counsel. LTC Peace was involved in the decision to detail me to SGT Kreutzer’s case. I left immediately to return back to Fort Bragg. I saw SGT Kreutzer at Fort Bragg before he was taken to Camp Lejeune for pretrial confinement. I remember that SGT Kreutzer had visible injuries to his face. He appeared very calm and quiet. I was struck by SGT Kreutzer’s flat affect at the time. I went to the crime scene the morning after the offense. I was given a detailed tour by the Trial Counsel and various ■ military police. By the time I returned to Fort Bragg from TDY, the autopsy on MAJ Badger, the only victim to die of wounds suffered during SGT Kreutzer’s attack, had already been eompleted. This disappointed and bothered me. I wanted to be present at the autopsy to ensure accurate reporting of the victim’s cause of death, and to observe the handling of forensic evidence.
I believe that one of the reasons I was detailed to the case was that I had a good performance record. During my first six months in TDS, I accrued about six acquittals during various courts martial. I did not attend a capital litigation course until after my assignment as SGT Kreutzer’s counsel. I made it very clear from the beginning that I did not have the experience to handle SGT Kreutzer’s case on my own, and I requested an experienced attorney to assist me. I specifically mentioned that the ideal lead defense attorney in this type of case would have the rank, at least, of LTC. I also suggested that lead counsel needed captial experience in either a military or civilian capacity. It was apparent immediately that this could be a capital case, and I wanted an attorney experienced in capital matters. Major Jim Gibson, from Fort Knox, was detailed. Jim was a very experienced criminal litigator with some homicide experience. He brought a sense of calm and direction to our team. Unfortunately, he had no capital litigation experience. Captain Steve Stokes was a defense counsel assigned to the 82nd Airborne Division. He volunteered to be a part of the defense team. He had less experience than MAJ Gibson. I do not know if he had more or less experience than me. I consider him an extremely strong, dedicated, effective defense attorney. He generally stayed in a supporting role. Additionally, I received informal assistance by talking with civilian attorneys in the local community who had worked on death penalty cases. I was apprehensive about my ability to adequately and effectively represent SGT Kreutzer from beginning to end. In hindsight, I was right to have been apprehensive. I was involved in a very serious capital case which required legal experience I simply did not have. Even today, after almost 10 years of legal practice, with 7 years of specialized criminal litigation experience, I feel that I am still not qualified to do more than second chair a capital case.
*809I felt then, and I feel to this day, that none of the attorneys assigned to defend SGT Kreutzer had experience adequate to the task.
After meeting SGT Kreutzer and walking the crime scene, I immediately recognized that I needed expert assistance in preparing a mitigation investigation, in anticipation of putting on a mitigation case at trial. We requested funding from the government for such expert assistance, first from the convening authority and then, after the referral, from the military judge. Both the convening authority and the military judge denied the request. Thereafter, even though I knew that mitigating evidence was critical, I had little guidance in assessing and articulating issues for SGT Kreutzer’s case in mitigation. It fell to me to conduct whatever work I could to prepare a mitigation ease.
I did most of the interviewing of family members and SGT Kreutzer’s acquaintances and friends. I traveled to Maryland on more than one occasion to conduct interviews. Again, I had no prior capital experience, and limited experience in building a case in mitigation. I gathered a lot of information about SGT Kreutzer’s past but cold not discern what was important and what was not. It was very difficult for me to discern what was important in SGT Kreutzer’s social or family history. For example, I knew that at the time of the offenses SGT Kreutzer’s father was pending criminal charges for a sex offense against a teenage girl. These offenses were allegedly more than 10 years old but had only recently come to light. SGT Kreutzer knew that his father was facing charges. While this fact was intuitively significant to me, I did not know how to exploit it to SGT Kreutzer’s benefit. In hindsight, I feel it was extremely important and relevant to a mitigation case, and we failed to use it in any way.
I also knew that there were mental health issues. Sergeant Kreutzer paid for an evaluation by Dr. Rollins, a psychiatrist in North Carolina, with his own funds. Dr. Rollins and I visited SGT Kreutzer together for his forensic evaluation. Dr. Rollins sent me a report early in November 1995. Dr. Rollins did not spend as much time with SGT Kreutzer as he would have liked, and his findings were merely preliminary. I spoke with Dr. Rollins immediately after his evaluation of SGT Kreutzer, and again later by telephone. Dr. Rollins immediately told me that, in his opinion, an insanity defense would not be viable and that the attorneys should pour their main efforts into his ease in mitigation. Despite this information, I did not pursue any further testing, nor did I follow up with him regarding use of this mitigating mental health evidence. Another reason that efforts stalled in this area was that SGT Kreutzer’s money was exhausted. I spoke with SGT Kreutzer’s parents to see if they could assist in funding. They stated that they could not assist him financially at that time. I contacted a private law firm interested in representing SGT Kreutzer. They offered to provide their services in return for SGT Kreutzer’s agreement to give the firm the “rights” to his life story. That effort, however, failed.
We continued to seek funds to obtain another mental health expert. We still wanted to see if an insanity defense was at all viable. I do not remember why I requested government funding to retain Dr. David Marcotte in November 1995, after Dr. Rollins had already begun his assessment of SGT Kreutzer. In any case, the government denied our request for funding for a mental health expert, and I was left with the mental health experts (Drs. Knorr and Lande) that the government provided. These doctors evaluated SGT Kreutzer at Walter Reed Army Medical Center in April 1996, and met with MAJ Gibson and me to discuss their conclusions.
I did not then appreciate that SGT Kreutzer’s mental health problems, which did not rise to the level of a complete defense, would, nevertheless, constitute significant evidence in mitigation. I do not remember that Drs. Lande and Knorr adequately explained to me how their findings could assist in presenting a mitigation case. Advanced legal representation is as much an art as a logical process. It requires years of training, followed by practical experience with hundreds, if not thousands, of criminal cases to become seasoned in this type of work. In my opinion, *810due to the miniscule volume of capital cases in the armed services, it is impossible to maintain a bar of experienced capital litigators qualified for this challenging area of practice.
I did not, therefore, effectively develop a mitigation case based on the mental health evidence. I knew about the incident in the Sinai with CPT Fong and I knew about SGT Kreutzer’s interview with Dr. Diamond on the day of the offenses, but I never interviewed either of these mental health professionals at any time prior to the trial. The government knew that Kreutzer had a history of mental problems. Sgt Kreutzer notified one of his senior NCO’s just prior to his shooting spree, either a First Sergeant or Sergeant Major. This NCO was immediately transferred out of the unit and was unavailable during his Article 32 investigation. I think that the government’s initial willingness to enter into a plea was based on its recognition that the chain of command failed to recognize the seriousness of Kreutzer’s problems, and not on any perceived flaws in the government’s proof. I remember discussing Dr. Diamond with MAJ Gibson, and it is my recollection that MAJ Gibson was responsible for interviewing her. I did not see a transcript of her interview with SGT Kreutzer and have never heard the tape. My recollection is that one of the other attorneys said that he had interviewed her and decided against using her testimony at the trial. Similarly, I believed that MAJ Gibson had interviewed CPT Fong, either telephonically or in person. I remember meeting CPT Fong the day of the trial. I believe that he was not called as a witness because we did not think his testimony regarding SGT Kreutzer would be mitigating. Some time after SGT Kreutzer’s sentencing I spoke with a private attorney, Mark Waple about SGT Kreutzer’s trial. Mark claims to have represented Dr. Diamond over some professional problems she had with the Army after SGT Kreutzer’s case. Mark mentioned to me that, in his opinion, Dr. Diamond was a critical witness that may have prevented the levy of a death sentence in SGT Kreutzer’s case. He could not discuss any details due to his attorney-client relationship with her. Mark Waple was one of the few private attorneys that gave freely of his time and extensive knowledge to our defense effort. To this day I am extremely grateful for Mark’s support.
Initially, I was uncertain about the impact of the 706 (sanity) board in preparing our case for trial, and unsure whether to advise SGT Kreutzer whether to cooperate with the board or to refuse to. My concern was that SGT Kreutzer’s statements to the board might not be privileged. Finally, it was decided that SGT Kreutzer should cooperate with the sanity board, in order to keep the option of an insanity defense open. However, it is my recollection that the defense team provided few records, if any, to the board. I am not sure whether the board obtained records on their own. I never asked for any information, such as notes or test results, from the sanity board. The board opined that SGT Kreutzer was mentally responsible at the time of the offenses.
Both before and after the sanity board, it was very clear to me that the defense team needed extensive expert assistance on mental health. Drs. Lande and Knorr were provided after the military judge denied our request for expert funds. I cannot recall exactly how these persons were made available to the defense. It might have been in an R.C.M. 802 session in the judge’s chambers, at which the judge and prosecutors (but not SGT Kreutzer) were present. We talked to one of these medical people on the phone in chambers during the session. From the beginning, the focus with respect to expert assistance was on the issues of competency and mental responsibility, and little was said about mitigation. I do not remember if we asked them to assist in developing mitigation information, nor do I remember if they volunteered any. I knew very little about Drs. Lande and Knorr. We had limited information about their backgrounds and professional experience, and I did not make any extensive inquiry. I have since been informed that Dr. Knorr was previously assigned as the psychiatrist for the 82nd Airborne Division. I do not remember that I knew of Dr. Lande’s connection to the 82nd Airborne Di*811vision at the time of SGT Kreutzer’s case. This, to me, clearly implies that Dr. Lande failed to inform us of this previous assignment and potential conflict of interest. So far as I recall, we did not provide either Dr. Lande or Dr. Knorr with any additional records in order to assist them in their evaluations.
Within the past few days I learned that the forensic psychiatrists at WRAMC, Drs. Lande and Knorr, had SGT Kreutzer examined by Dr. (COL) Robert S. Brown. This exam occurred during the time that SGT Kreutzer was at WRAMC for evaluation in preparation for trial. I was provided a copy of Dr. Brown’s report (dated April 11, 1996) on February 5, 2002 by COL Odegard. Until COL Odegard told me about Dr. Brown’s examination I had never heard of Dr. Brown, had no knowledge that he had examined my client SGT Kreutzer, and was unaware of Dr. Brown’s conclusions regarding SGT Kreutzer’s mental state on the date of the offenses. 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 SGT Kreutzer’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 forensic psychiatry program at WRAMC had been appointed to assist the defense in this case and SGT Kreutzer was sent to WRAMC 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 SGT Kreutzer, 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.
Once I knew, from Dr. Rollins’ evaluation, that an insanity defense was likely unavailable, it became evident to me that we should try to enter into a plea agreement in exchange for a life sentence. MAJ Gibson agreed with me, and we both felt that we needed an expert in capital litigation who could talk to SGT Kreutzer about the advantages of a plea. The Government’s trial counsel offered a plea within days of the shooting. The offer included a stipulated life sentence, with possibility of parole, in exchange for SGT Kreutzer’s plea to some form of murder. I remember receiving a written plea agreement that we took to SGT Kreutzer for his consideration. Even the military judge seemed to be in favor of a plea — I recall him saying to me in informal conversation words to the effect that the case “needs to be settled”. Unfortunately, we failed to convince SGT Kreutzer to accept the plea offer. During this time, in the fall and winter of 1995, he was in and out of depression and was suicidal. We had regular meetings with him, trying to get him to plead guilty. We utterly failed to convince him to sign the plea agreement. Our failure to get SGT Kreutzer to make a timely decision and accept the plea was of tragic proportions. We tried to get him on medication, but his cooperation with medication was “hot and cold.” I do not remember him ever becoming stable. Eventually another prosecutor, MAJ Einwechter, was assigned SGT Kreutzer’s case. At that point the plea offer was permanently taken off the table.
Once MAJ Gibson was on the defense team, late in 1995, we divided up responsibilities for SGT Kreutzer’s defense. MAJ Gibson stated that he would do the sentencing argument, since he was the senior attorney. I recall that we talked about interviewing Diane Badger (MAJ Badger’s wife). I do not remember talking to her. We were not aware that she tried to give a Book of Mormon to SGT Kreutzer or that the trial counsel instructed her not to talk to him until after her testimony. I interviewed many of the shooting victims before the trial. They were all extremely cooperative and professional. OPT Stokes and I were both at Fort Bragg, and I spoke with him regularly. CPT Stokes did a lot of the legal research in preparation for trial, but I cannot recall any details. MAJ Gibson was not stationed at Fort Bragg, and could not be as involved as *812he needed to be. He had at least one other major case going on until the end of 1995. Also, his mother was very ill and died during this time frame. MAJ Gibson was a mature, experienced litigator that brought much to the team. However, MAJ Gibson’s late appearance in the case, his limited availability, and lack of capital experience was very frustrating. We could have used additional support during preparation for trial.
As part of our requests for funding to the convening authority and military judge, we requested separate funds to hire a private investigator. We wanted, and deserved, an investigator with capital litigation experience, to assist in our pre-trial investigations. In response to this very reasonable request, we received a completely illogical, unreasonable and insulting response. An investigator from a military police company at Fort Bragg was assigned to assist us in our work. This investigator came from the very same military police unit that investigated and helped prosecute SGT Kreutzer’s case! We, of course, could not use him much less trust him. He had zero experience with investigating capital cases. The assignment of this investigator was a humiliating, “slap-in-the face” to our defense team.
In retrospect, I think that it was a complete mistake to have SGT Kreutzer plead guilty to the lesser offenses. In doing so we forfeited the opportunity to have a detailed trial in which the mitigation evidence. In particular, the escalating pressures on SGT Kreutzer, who was known by his unit to have mental health problems and to have threatened violence in the past, could have been presented and discussed. Our thought was to rest on “honor, to show remorse and responsibility.” This strategy might have worked for an ordinary felony case, but was very inappropriate for a premeditated murder case with the death sentence as a very probable outcome. I have no independent recollection of SGT Kreutzer’s providence inquiry or our preparation for it.
We knew that we needed a mental health expert to testify. I do not recall why we decided to use Dr. Diebold in the merits phase of the trial. Perhaps we were trying to negate the issue of premeditation. In any event, it was a meager, awkward and unskilled effort to work in SGT Kreutzer’s mental health problems. In my opinion it failed to be helpful. I do not recall ever meeting with Dr. Diebold or getting any records or notes from him. I also do not remember giving any information or records to him to help him prepare his testimony. I do not recall whether or not I received records from mental health professionals who had had contact with SGT Kreutzer at the Camp Lejeune brig. I knew that SGT Kreutzer had been diagnosed with various personality disorders (different disorders by different professionals). These personality disorders concerned us mostly when trying to prepare for the government’s rebuttal at trial. I do recall, in dealing with the issue of Dr. Diebold’s testimony, that we did not want to lose the sympathy of the members by seeming to use mental health problems as an excuse.
Our strategy for the penalty phase of the trial was developed very late in the case. We looked over what we had and did not have, and made various critical decisions. We chose witnesses whom we thought would cause the least damage. We initially planned on calling SGT Kreutzer’s father, but minutes before testifying he became upset to the point of being uncontrollable and I decided not to call him to the stand. I remember meeting with the family members and going through things shortly before the trial. In short, we treated the penalty phase of this case the same as we would treat the extenuation and mitigation ease in any court-martial. We did not spend enough time preparing witnesses. Part of that, to be sure, was because the extenuation and mitigation witnesses (at least the family members) were out of town. I did not perceive the importance of extensive interviews and preparation of these witnesses. It was a struggle to get the funding to do the travel required, and inadequate time was set aside for this effort.
My office at TDS was in the same building (at XVIII Airborne Corps) as the military judge’s office. On a few occasions the military judge asked me into his office to talk informally with him about SGT Kreutzer’s case. I do not recall the exact substance of *813these conversations, but they mainly involved him asking me how the defense team was progressing in its preparation for trial and if we felt we would be ready to proceed with the litigation schedule established at that time. We had some R.C.M. 802 sessions (at which the government representative was present but SGT Kreutzer was not). At the time, I did not see a problem with 802 sessions, so long as the record stated what went on in the sessions. Now I know that, during capital litigation, it is poor practice to have a session in which there is no record for review, or to have a session in which the client is not present. There were many informal sessions, including some before referral, in which things related to the ease were discussed with the judge and the prosecutors. It was in these early, informal talks that I got the strong impression that the judge wanted the case to move quickly and efficiently. It was my impression that the judge was completely comfortable with, and would accept, a plea in return for a life sentence. I did not approach the convening authority to try to obtain his agreement to a non-capital referral. MAJ Gibson did try and was not successful.
At the time of SGT Kreutzer’s trial, I was only vaguely aware that an individual’s adjustment to confinement is appropriate mitigating evidence in a capital case. I spoke with the mental health professionals at Camp Lejeune and read their reports. We had a dilemma. We were trying to get SGT Kreutzer appropriately medicated. However we were very concerned that SGT Kreutzer’s statements to mental health professionals at the jail would not be privileged. For this reason we actually wanted to insulate SGT Kreutzer from questioning by mental health professionals. I did know that SGT Kreutzer was suicidal for much of the time he was in pretrial confinement. I spoke with the brig personnel about appropriate precautions, and also about medications. I was told by a social worker about SGT Kreutzer’s attempt to hang himself with his boot laces. Dr. Rollins recommended that SGT Kreutzer be medicated. I recall seeing reports from Drs. Messer and Stone at the brig. We were concerned that if we called either of them to testily we might have to turn over those reports to the government. Some of these reports contained information that we deemed damaging to the defense effort. In retrospect, I should have explored more thoroughly the issue of SGT Kreutzer’s adjustment to confinement. I often spoke informally to SGT Kreutzer’s guards, just to see how he was doing, but I did not realize that their impressions may have been of value to our case in mitigation. I do not recall talking to the brig chaplain, but I do recall that SGT Kreutzer told me that he had talked to a chaplain.
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. We felt very, very restrained with regards to blaming the system or the command. In hindsight, we should have prepared this approach meticulously and then walked this avenue with both barrels blazing. It would have been easier to do this if the venue, panel members, and two defense counsel had not been at Fort Bragg.
In retrospect, SGT Kreutzer’s defense team failed because we were grossly inexperienced and grossly underfunded for purposes of capital litigation. Further, we were denied the ability to choose highly qualified mental health experts that we felt comfortable with. We had the right to experts that were capital qualified, and sympathetic to SGT Kreutzer’s cause. To top it off, we were completely denied the assistance of a mitigation specialist and an experienced investigator. The combined effect of these legal events was that of a calvary sabre slicing the hamstrings of a charging horse at *814full gallop. Charger and rider crashed to the ground, never to rise and fight again. SGT Kreutzer’s defense team was crippled by lack of experience and lack of resources. SGT Kreutzer never had the team that he needed, and we told our superiors that. I hoped that we could get sufficient assistance from the TDS network in the Army. Sadly, Army TDS had no institutional knowledge and experience with capital litigation. TDS also failed to look “outside of the box” for assistance with SGT Kreutzer’s case. TDS was basically no help. Attendance at a two-day training program is absolutely no substitute for a seasoned criminal defender with capital litigation experience!! We tried very hard to implement the suggestions made at the training course, especially regarding the employment of experts. The government and the military judge both denied funding for those experts. Ironically, we were unable to put what little we had learned into effective practice.
AFFIDAVIT
The affiant, Stephen Stokes, after first being duly sworn, makes the following statement:
I was one of the counsel on the Trial Defense Services (TDS) team who represented SGT William J. Kreutzer, Jr., at his court-martial in 1995 and 1996. Sergeant Kreutzer was sentenced to death in June, 1996. I left the Army in June, 1999 and am currently in private practice in Fayetteville, North Carolina.
I was not the first attorney detailed to the case. That was CPT Tony Martin. At the time the offenses I was assigned to the TDS office at the 82nd Airborne Division. I graduated from law school in 1991, entered the JAGC in 1992, and reported to Fort Bragg in the summer of 1994. When the offenses occurred, I was at a TDS conference in South Carolina. We received a call about what had happened. After some discussion among the TDS leadership present at the conference, CPT Martin was assigned to the case. Later MAJ Gibson was added, and I came in after that. I do not know the reason I was assigned, but I do note that I had been at TDS for more than a year and that the leadership likely thought a third attorney was needed. I recall sitting in at the Article 32 hearing.
My role in SGT Kreutzer’s defense was much more limited than the roles of the other two counsel. When I came in on the case there was some discussion among three counsel regarding division of responsibilities. I helped with a few motions, most significantly the venue motion, which I argued. I met SGT Kreutzer at Ft. Bragg on occasion, but I did not travel to Camp Lejeune to meet with him at the brig. My role was basically limited to the tasks that were assigned me by the other counsel. I did not have any capital experience and I had no training in capital case litigation. Once assigned to the case I was not given any additional training opportunities for capital case litigation.
All of us in the defense were sensitive to the atmosphere at Fort Bragg, and that was a reason why we wanted a change of venue or a panel not connected with the installation. We got neither. We were also concerned about the military aspect of the victim impact evidence, knowing that the victims would be marched into the courtroom. We discussed the atmosphere at Bragg regarding pressures not to seek mental health services. The judge, who had been Special Forces and had served in Vietnam, wanted to try the case at Fort Bragg. He moved the case along fairly fast.
What made the case complicated was the extent of the mental health issue, including the sanity board. I was not involved with the sanity board and knew nothing about Dr. Rollins, who was a psychiatrist retained by SGT Kreutzer early in the case. I was aware of defense requests for funding for experts of various kinds, but was not directly involved in that process so I have very little knowledge of specifics. I was not at all involved in anything regarding Dr. Lande or Dr. Knorr, and I recall no discussion regarding their findings, or whether to use them as witnesses at the trial. I know that Dr. Die-bold had done the sanity board, and I probably saw that report. I remember talking in general terms with the other counsel regarding who we were going to use as a mental health witness, but I do not know why Dr. *815Diebold was chosen. I was not aware of any mental health experts who had seen SGT Kreutzer at the Camp Lejeune brig, and I do not know whether SGT Kreutzer was ever examined that the brig. I never had any dealings with anyone from Camp Lejeune, and I do not remember any discussion about putting on any evidence about how SGT Kreutzer had adjusted to incarceration. I was not involved with any of the interviews of family members or others that were done in preparation for the sentencing ease.
I remember knowing that Dr. Diamond was involved early in the case, but I do not know any details. I never saw any notes or transcript, and I never heard the tape of her interview with SGT Kreutzer. I remember that there were some issues regarding the fact that government agents observed the interview, but I recall no discussion between the defense counsel about whether Dr. Diamond should be interviewed or used as a witness, and I do not know whether the other attorneys discussed that.
I was aware that there was an officer who had seen SGT Kreutzer overseas, prior to the offenses, about mental health issues. There was some issue of whether he should have followed up with SGT Kreutzer. I did not talk to this officer, and thought that one or the other counsel did.
As I was assigned to the 82nd Airborne Division TDS office and CPT Martin was assigned to the XVIII Airborne Corps office, we had little day-to-day contact. Our offices were on opposite sides of post. I knew that CPT Martin was in contact with MAJ Gibson, generally by phone because MAJ Gibson was usually elsewhere, but I was not involved in those conversations.
Regarding the R.C.M. 802 sessions, I was aware that CPT Martin had been involved in some informal discussions with the military judge, but since I was across the installation at another office, I was generally not involved. It was not unusual for Judge Brown-back to have 802 sessions. I am not sure that everything that should have been on the record was on the record in SGT Kreutzer’s case.
I am not aware of any offers by the government regarding a plea agreement. I recall only that we tried to offer a plea agreement, probably in March 1996, which the government rejected.
In sum, I believe that the key issue in this ease was the defense’s asserted need for expert assistance, particularly for a mitigation expert, which was denied by the government. Without this expertise, and without the funding necessary for expert assistance, we were unable to do the type of job in representing SGT Kreutzer that was required.
. I respectfully disagree with that portion of Judge Currie’s concurring opinion where he concludes that prejudicial ineffective assistance of counsel rendered the findings unreliable. I agree with Judge Clevenger that the prejudice prong of Strickland has not been satisfied. Notwithstanding counsel's deficiencies, there is more than enough direct and circumstantial evidence of premeditation and expert opinion evidence as to appellant’s sanity to convince me that a more complete picture of appellant’s mental health would not have resulted in a different finding. Id. at 688, 104 S.Ct. 2052; Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
. Judge Clevenger wrongly concludes, in my opinion, that the military judge "cites an unpersuasive legal rationale” in denying the request. United States v. Kreutzer, 59 M.J. 773, at 779 (Army Ct.Crim.App.2004). The military judge cites United States v. Loving, 41 M.J. 213 (C.A.A.F.1994), at page 250 in making his decision. Judge Clevenger accurately points out that the issue in Loving was not whether the military judge abused his discretion in denying a request for expert assistance, but rather was the defense counsel’s decision not to utilize an expert reasonable. Thus, according to Judge Clevenger, the military judge's reliance on Loving is misplaced. I believe, however, that the military judge cited Loving only for the proposition that "[wjhile use of an analysis prepared by an independent mitigation expert is often useful, we decline to hold that such an expert is required.” Id. at 250. The military judge then rightly concluded that there had been no showing of necessity.