concurring in part and dissenting in part:
I concur in the majority opinion except the holding that the defendant had effective assistance of counsel at the sentencing phase of his trial. I also disagree with the subsidiary holding that “the constitutional standard for effective counsel is no more stringent in capital cases than in cases where less severe punishments are imposed.” (Slip op. at 1247). This latter holding flies in the face of the common understanding of the uniqueness of capital cases, as expressed by the Supreme Court in Lockett v. Ohio:
Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital eases.
Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).
Counsel for the defendant was ineffective at the sentencing phase of the trial. This ineffectiveness was starkly demonstrated by the failure of counsel to present any testimony at the sentencing hearing. The majority and district court opinions imply that counsel’s failure is excusable because Proffitt was tried in 1974. These opinions, along with others, suggest that the idea that a sentencing authority should consider aggravating and mitigating circumstances originated in the 1976 trilogy of cases approving capital crime statutes in Florida and Georgia and disapproving such a statute in North Carolina. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Nothing could be further from the truth, as illustrated in the early opinion by Justice Black in Williams v. New York:
[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.
A sentencing judge ... is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. . . .
Williams v. New York, 337 U.S. 241, 246-47, 69 S.Ct. 1079, 1082-83, 93 L.Ed. 1337 (1949).
In addition to the historical recognition of an individual’s character at the sentencing phase, counsel should have been alerted to the importance of mitigating circumstances by the Florida capital crime statute enacted in 1972, Fla.Stat. § 921.141 (1973), after Furman v. Georgia had declared unconstitutional the statutes of a number of states. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). That statute explicitly provided:
In the [sentencing] proceeding, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections [(5)] and [(6)].
*1271§ 921.141(1) (emphasis added). Even though counsel may not have foreseen the Lockett rule, that a court may not preclude evidence of any mitigating circumstance, the Florida statute left no doubt that: (1) evidence of the enumerated mitigating circumstances, which included mental or emotional disturbance, was mandated, and (2) any evidence relevant to sentencing was permitted. Also available to guide counsel was the opinion of State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), in which the Florida Supreme Court discussed the new statute thoroughly, and pointed out the advantage to the defendant of presenting matters in mitigation:
The most important safeguard presented in Fla.Stat. § 921.141, F.S.A., is the propounding of aggravating and mitigating circumstances which must be determinative of the sentence imposed.
When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.
Dixon, 283 So.2d at 8-10 (emphasis added).
Counsel for Proffitt was apprised by Dr. Crumbley of the defendant’s unstable mental condition on the evening before the trial started. Although counsel was thus alerted to the possibility of mitigating psychiatric circumstances, he obtained no psychiatric evaluation and made no effort to seek a continuance to permit further investigation. Counsel testified at the habeas corpus hearing that he had visited with Proffitt a number of times and that Proffitt had appeared lucid to him. Just as a psychiatrist should not assume the role of a lawyer, an attorney defending someone subject to the death penalty should not assume he is capable of evaluating whether his client, at the time the crime was committed, “was under the influence of extreme mental or emotional disturbance” or had a substantially impaired capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” Fla.Stat.Ann. § 921.141(6)(b) and (f) (West Supp. 1981). This court has long recognized the responsibility of counsel to acquire expert psychiatric assistance when a defendant’s mental condition may be critical to the outcome of his case. Beavers v. Balkcom, 636 F.2d 114 (5th Cir. Unit B 1981); United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976).
At the habeas hearing, counsel also stated that he did not engage in any separate and distinct preparation for the penalty phase, but prepared for that part of the trial in conjunction with his preparation of the case as a whole. He said that he had no strategy for the penalty stage but that his approach to that stage was dependent upon what occurred during the guilt phase. With only a thirty-five minute break between the end of the guilt phase and the beginning of the sentencing phase of the trial, counsel obviously had no opportunity to remedy his inadequate preparation. This failure to investigate the entire area of his client’s mental condition and possible mitigating circumstance strikes at the core of ineffective assistance of counsel. An attorney cannot make a wise choice of strategy without meeting the initial duty to investigate. Beavers v. Balkcom, 636 F.2d 114.
The lawyer also has a substantial and very important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant himself. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships and the like will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions.
A.B.A. Project on Standards for Criminal Justice, Standards Relating to: The Prose*1272cution Function and The Defense Function, 227 (1970) (emphasis added).
The Florida statute and the Dixon opinion make clear that an attorney has, and had in 1974, an obligation to investigate the possible existence of psychiatric evidence bearing on the statutory mitigating circumstances. The existence of such evidence might have made the difference between life and death for Proffitt. Counsel’s failure to have his client examined by a psychiatrist under such circumstances was automatically ineffective assistance.
In its denial of habeas corpus, the district court relied in part on the fact that the state trial judge obtained two psychiatric evaluations before imposing a final sentence. Such reliance was unwarranted. Most important, the jury did not hear the testimony before making its sentencing recommendation. Furthermore, the testimony was aimed at the defendant’s competency rather than at mitigating circumstances and was presented by court-appointed psychiatrists not secured on behalf of the defendant. The innovation brought about by the Florida 1972 statute which governed this trial was participation by the jury in the sentencing process. Here, however, the jury was denied the presentation of any evidence, humanizing or psychiatric, which would provide a basis for recommending a sentence less than the death sentence.
For both sixth amendment and eighth amendment reasons, Proffitt cannot be put to death without a fair and complete sentencing trial at which he has an opportunity to present mitigating and psychiatric evidence.