concurring.
I concur in the panel’s opinion. With regard to the ineffective assistance of counsel issue, I agree with the majority that the Supreme Court’s latest pronouncement in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), seems, under the general Sixth Amendment test there announced, to require us to reject what would otherwise be a compelling argument. To me at least, Milton’s otherwise-excellent counsel, perhaps through overconfidence, was prejudicially ineffective in failing to present any mitigating evidence whatsoever at the sen*1103tencing phase following conviction, although some was available.1
Nevertheless, in Strickland, the Court seems to have held that Sixth Amendment ineffectiveness claims require that “the defendant affirmatively prove prejudice,” — U.S. at-, 104 S.Ct. at 2067, in determining whether “counsel’s assistance was so defective as to require reversal of a conviction or death penalty,” — U.S. at-, 104 S.Ct. at 2065. However much I myself may think that Milton’s chances of receiving life imprisonment instead of a capital sentence would have been much improved, if the jury had been presented individualized evidence that he was a human being and that he had no extended record of violent crime, nevertheless, under the Strickland test, apparently we cannot say that counsel was ineffective unless it is shown affirmatively that the death penalty would not have been imposed had the sentencing jury been afforded this testimony— virtually an impossible burden, I might add, as to a jury’s life-death discretionary determination.
Under the facts of this case, however, while the deficiency of counsel may not under Strickland constitute unconstitutional Sixth Amendment ineffectiveness, nevertheless it may run afoul of Eighth Amendment concerns against the unreliable, arbitrary, and freakish imposition of the capital sentence, condemned by the Supreme Court over the past twelve years;2 I write separately to express that concern.
I.
Milton was convicted of the killing, during an armed robbery, of the wife of a proprietor of a liquor store. The proprietor, an elderly man, attempted to disarm Milton. In the struggle between them, the proprietor’s wife was killed. Despite Milton’s counsel’s argument that the shooting was accidental (Milton chose not to take the stand), the jury accepted the uncontradicted testimony of the proprietor that the killing was deliberate. I have no question in my mind but that the jury’s conviction of the capital offense, that made Milton a candidate for execution, is completely supported by the evidence and that he therefore deserves severe punishment, whether it be execution or life imprisonment.
My doubts, rather, arise from the circumstance that Milton’s counsel chose not to place before the jury any' mitigating circumstances whatsoever, although some were available, by which the jury might determine that this defendant was a human being and one as to whom there was no “probability” that he “would commit criminal acts of violence that would constitute a continuing threat to society,” one of three questions propounded to the sentencing jury that, to invoke the death sentence, required an affirmative jury answer. Tex.Code Crim.Pro. Art. 37.071(b) (emphasis added). Under the facts of this offense, after all, although this was a cold-blooded armed robbery, it was a hot-blooded (rather than cold-blooded) killing, and the jury might well have found the ultimate penalty unwarranted if, on a view of Milton’s life circumstances, it had found there was no reasonable probability that he would continue to commit acts of violence. Instead, on the basis of the uncontested testimony of the prosecution, the sentencing jury was given no reason to conclude that the death penalty was unwarranted.
After hearing the affecting testimony of the elderly proprietor of the killing of his wife of thirty-eight years, the jury returned a verdict of guilty of the capital offense at *11049:10 AM, October 9, 1978. R. XIX, p. 2330. The penalty phase of the trial commenced at 10:15 AM and concluded at 2:24 PM, with only the state producing evidence (to be described below). R. XIX, pp. 2335-2378. The jury retired at 3:24 PM and returned at 4:50 PM, R. XIX, p. 2412, apparently with little difficulty concluding that the death-sentence-resulting questions should be answered in the affirmative.
The only evidence produced at the sentencing hearing was that of the prosecution. This evidence consisted of proof of Milton’s 1972 conviction of felony theft; proof that a few days before the present robbery of June 24, 1977, Milton was found •unlawfully carrying a pistol; and proof that on each of the two days before the present robbery Milton had committed an armed robbery (although he had not harmed the victims therein).
On this, the only evidence before the sentencing jury, the jury could quite reasonably have concluded that Milton was a violent criminal without redeeming individual aspects. The jury was not given the opportunity to hear the testimony of Milton’s two sisters and his brother and members of their family that would indicate he was a human being, without any history of violent crime until just two days before the present robbery — a member of a family, loved by them and loving them, kind to children, essentially peaceful in nature.
The decision not to present to the sentencing jury this evidence, in the face of the prosecution’s uncontradicted evidence of Milton's (recent) violent acts, is almost certainly one that was unwise and, perhaps, arose from overconfidence that the jury would not impose a capital sentence. The now-advanced fear that the jury might learn of Milton’s drug addiction, even conceding that at least some of the jurors might view this as an aggravating rather than mitigating circumstance, pales in significance, when one considers the prosecution’s unopposed evidence indicating that Milton was only a violent criminal — rather than one who had turned to violent crime only two days before the present robbery, and who otherwise had a non-violent and rather minor criminal record, and who was a member of the human race beloved by his family — and the death-sentence-resulting interrogatory by which the jury was to conclude whether there was a “probability” that Milton would continue to commit violent crimes. Production of such mitigating evidence would usually be deemed an essential move of effective counsel, if only to lengthen the time between the evidence leading to Milton’s conviction of the crime itself, with its affecting details, and the time the sentencing jury retired to perform its awesome sentencing responsibilities. Those responsibilities required the jury, before deciding on death, to take into consideration not only the facts of the crime itself, but also the broader issue of whether “the unique circumstances of this individual defendant,” Spaziano v. Florida, — U.S.-,-, 104 S.Ct. 3154, 3162, 82 L.Ed.2d 340 (1984), made it appropriate that he should be executed rather than sent to live in prison for the rest of his life.
On the record before us, I am convinced that counsel erred in failing to offer to the sentencing jury any mitigating evidence whatsoever by which the jurors could view Milton as a human being, with some good qualities, rather than only as an armed robber who had evilly killed a victim of his robbery. Nevertheless, under at least the wording of Strickland, I cannot say that Milton has affirmatively shown, as required by that decision, that his counsel was ineffective in a Sixth Amendment sense: for I cannot say, nor can anyone (see II infra), that the jury probably would not have meted the death penalty even had this mitigating evidence been presented for its consideration.
However, Eighth Amendment concerns are aroused in me by our mechanical application of Strickland’s Sixth Amendment standard to the facts of this case. Unless the death penalty is always appropriate when a victim is killed in the course of an armed robbery — and the Supreme Court has held it is not — , Milton’s counsel’s failure to offer available mitigating, humaniz*1105ing evidence at the sentencing hearing failed to assure him that his sentencing jury would not arbitrarily and unconstitutionally impose the death sentence by failing to consider “the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).
Indeed, in upholding the Texas capital sentencing scheme, the Supreme Court stated:
[A] sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, 428 U.S. 280, 303-305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.
Thus, in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances.
Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976).
The sentencing scheme of Texas meets, of course, this constitutional requirement. Under the state procedure, Milton’s counsel was entitled to offer mitigating evidence.
What is troubling to me, however, is that counsel’s failure to offer this available mitigating evidence, although not a Sixth Amendment ineffectiveness, may in consequence have produced a capital sentence violative of Eighth Amendment standards. We have before us a death penalty that may have been freakishly and arbitrarily imposed, through the failure to afford the jury “relevant evidence ... why it should not be imposed,” Jurek, supra (emphasis added) — and that may no less offend the Eighth Amendment because Milton’s own counsel chose not to avail himself of Eighth Amendment protections, than if the state had prevented Milton’s sentencing jury from receiving this available relevant evidence.
II.
Strickland applied its Sixth Amendment standards to claims of ineffectiveness of counsel in the sentencing process. The claims of ineffectiveness there concerned in truth, matters of professional judgment as to which reasonable minds might differ. There may be doubt, in my view that Strickland’s pronouncement requiring an affirmative burden upon the applicant for relief to show prejudice — in short, that the death penalty would not have otherwise resulted — was necessarily intended to apply when, as a result of a counsel’s lapse that on review does not seem supportable as sound trial strategy, the defendant is deprived of an Eighth Amendment protection against an arbitrary capital sentence through a failure to present to the sentencing jury any mitigating evidence whatsoever, although some is available.
In the present case, Milton’s lawyer presented no mitigating evidence at the sentencing hearing — nothing to describe the petitioner’s humanity or his fitness to continue life in this world. Whether or not he so failed because of an overconfident belief that this was an inappropriate ease for the death penalty, there seems to me to be little professional justification for the failure. Because of it, the petitioner was denied the “professionally competent assistance” demanded by Strickland v. Washington, 104 S.Ct. at 2066. But the panel cannot say that, absent the lawyer’s failures, “the decision reached would reasonably likely have been different.” Strickland, — U.S. at-, 104 S.Ct. at 2069.
The nub of the resulting problem is this. We almost never can make that determina*1106tion of prejudice as to death sentences, when no mitigating evidence whatsoever is presented at the sentencing hearing. The death sentence now may be imposed only on persons convicted of intentional murders,3 and it is almost impossible on subsequent review to assess what evidence, not presented to the factfinder, would permit us to conclude after-the-fact that a sentence other than death “reasonably likely” would have resulted. Yet this course seems in direct conflict with the Eighth Amendment imperative requiring capital sentencers to consider all evidence mitigating against the punishment of death and militating in favor of recognition of the essential humanity of the defendant before the sentencer.
A death sentence is “a denial of the executed person’s humanity.” Furman v. Georgia, 408 U.S. 238, 290, 92 S.Ct. 2726, 2752, 33 L.Ed.2d 346 (1972). It “is ultimately understood only as an expression of the community’s outrage — its sense that an individual has lost his moral entitlement to live.” Spaziano v. Florida, — U.S.-, -, 104 S.Ct. 3154, 3167, 82 L.Ed.2d 340 (1984) (Stevens, J., concurring in part and dissenting in part). For these reasons, the Eighth Amendment has been interpreted to guarantee the person whose life is at stake the right to present virtually any evidence that will show the sentencer that his humanity is important enough that it should not be denied.
While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long.
Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (citations omitted, emphasis added). Woodson invalidated mandatory capital sentences because they preclude the consideration of individual circumstances that suggest the inappropriateness of death as punishment.
The Supreme Court more recently has held that a death penalty statute violates the Eighth Amendment if it limits any of the mitigating facts a capital sentencer may consider.
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.
Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (emphasis added). See Spaziano v. Florida, — U.S. -,-, 104 S.Ct. 3154, 3162, 82 L.Ed.2d 340 (1984) (“The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant____”) (emphasis added).
As previously noted, I have difficulty in distinguishing between a process that denies a defendant the opportunity to present mitigating evidence and one in which, through a lawyer’s mistake of judgment, such evidence is not, in fact, presented. The resulting sentence of death is equally unreliable, freakish and arbitrary.
To me, this seems true whether or not we can say that, with the omitted evidence, the result “would reasonably likely have been different.” Perhaps this is why the Supreme Court has emphasized that the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964. Accordingly, “unique safeguards” are required in capital sentencings. Spaziano v. Florida, — U.S. at *1107-, 104 S.Ct. at 3167 (Stevens, J., concurring in part and dissenting in part). Therefore, if not foreclosed by Strickland, I would in the present case be persuaded by Justice O’Connor’s view that a capital sentence should be vacated where significant mitigating evidence has been kept from the sentencer without justification, even though the applicable death penalty statute permits its presentation, unless the mitigating evidence was “so insignificant that we can be sure its effect on the sentencing judge’s [or jury’s] determination was negligible.” Enmund v. Florida, 458 U.S. 782, 801 at 830-31, 102 S.Ct. 3368, 3379 at 3394, 73 L.Ed.2d 1140 (1982) (O’Connor, J., dissenting, but agreeing that death sentence should be vacated).4
Were it not for Strickland’s (perhaps unintended) application, I would not be able to say the failures of the petitioner’s lawyer were “insignificant” or their effect “negligible,” and I would therefore vacate the death sentence as imposed in violation of the Eighth Amendment.
. Like the majority, I am also concerned that the principles of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), may have been offended by the state trial judge’s instruction during voir dire that the jurors were required to answer the death-penalty-producing questions propounded to them, without any consideration that the death penalty was involved. However, in Brooks v. Estelle, 697 F.2d 586 (5th Cir.1982), another panel of this court rejected a similar contention. By the "law of the circuit," we are bound by that decision, in the absence of en banc overruling or Supreme Court modification of the Brooks ruling.
. See, e.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
. Never when statutes have limited the accused’s presentation of mitigating evidence has the Court asked whether the omitted evidence “reasonably likely” would have produced a different result. E.g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Strickland, though stating that standard as governing, may possibly be distinguished in three ways. First, the issue before the Court was the Sixth Amendment, and the standard formulated is intended to govern all cases, capital and otherwise. Strickland’s principal concern is the reliability of a particular verdict or sentence, and, as noted in the text, the Court has been clear that “a greater degree of reliability” is called for in capital sentencing. Cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (new sentencing where accurate information not before sentencer). Second, the sentencing in Strickland was by a judge, not a jury, and the record reflected a searching inquiry by the judge. Finally, the omitted evidence in issue was "insignificant" in Justice O’Connor’s Edmund meaning in that it "would barely have altered the sentencing profile." Strickland v. Washington, — U.S. at-, 104 S.Ct. at 2071. Without Supreme Court guidance, however, we are not in a position to go where these distinctions would lead us.