dissenting:
James Messer did not receive effective assistance of counsel at the sentencing phase of his trial. Messer’s attorney, John Sawhill, knowingly prompted the sole witness on Messer’s behalf to testify that Messer expected and was reconciled to receiving the death penalty. Then Sawhill told the jury in his final closing argument that he did not know what to say. He unmistakably implied that, as a parent under these circumstances, he too could accept a *1094verdict directing the execution of his client. This conduct fell outside the “wide range of reasonable professional assistance” guaranteed by the Sixth Amendment, see King v. Strickland, 748 F.2d 1462, 1463 (11th Cir.1984), especially since Sawhill’s trial strategy was to focus almost exclusively on the sentencing proceedings and the hope that one juror might find mitigating circumstances sufficient to outweigh the aggravating circumstances argued by the prosecution. When Sawhill finished his closing argument, not one advocate remained before the jury for the position that death was not deserved. In my view, Saw-hill’s conduct at the sentencing phase completely “undermined the proper functioning of the adversarial process,” and therefore the sentencing proceedings “cannot be relied on as having produced a just result.” See Strickland v. Washington, — U.S. -,-, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984). Accordingly, I dissent.
I. THE STANDARDS
The majority opinion has paraphrased generally the two-part test articulated in Strickland v. Washington for evaluating a claim of ineffective assistance of counsel. I accept the test as paraphrased but note emphatically at the outset what the Supreme Court described as “the ultimate focus of inquiry”:
[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.
Strickland v. Washington, supra, — U.S. at-, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. In the present case, whether the sentencing proceedings were fundamentally unfair because they lacked adversarial testing is the critical issue.
In addition, the second part of the Strickland v. Washington test — the prejudice inquiry — deserves closer consideration than the majority has given it. The majority accurately relates the standard for prejudice: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The Supreme Court’s careful wording of this standard is of crucial importance here. The likelihood of a different result at the sentencing phase need only be reasonable. Messer is not required to show that Sawhill’s deficient conduct “more likely than not” altered the outcome in his case. Id. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 697. As defined by the Supreme Court, the probability of a different result need only be “sufficient to undermine confidence in the outcome.” Id. Having reviewed the record and, in particular, the transcript of the sentencing proceedings, which includes the testimony elicited from Messer’s mother and Sawhill’s closing argument, I conclude that a reasonable probability of a different result does exist. Unlike the majority, I cannot say with confidence that Sawhill’s conduct “in no way affected” the outcome of the sentencing phase of the trial. To the contrary, it is reasonably likely that, had Sawhill’s performance not been deficient, at least one of the twelve jurors would have weighed the aggravating and mitigating circumstances differently.
II. THE STRATEGY
Sawhill’s testimony before the magistrate in the federal habeas proceedings below reveals that, as the trial date approached, he came to fully expect the jury to return a guilty verdict for his client. The evidence against Messer was overwhelming and the possible defenses few. Thus, Sawhill realized before trial that this would be his first case involving allegations of a capital crime to reach the sentencing phase. Sawhill chose to employ a “low-key approach” at the guilt-innocence phase and then attempt to present the “human side” of his client during the sentencing proceedings. The overriding purpose of this strat*1095egy was to convince the jury in the sentencing phase that mitigating circumstances outweighed whatever aggravating circumstances the jury might find. Given the overwhelming evidence of guilt, Sawhill’s choice of strategy cannot be faulted. See Warner v. Ford, 752 F.2d 622, 625 (11th Cir.1985). His execution of that strategy, however, most certainly can.
III. THE EXECUTION
Sawhill’s closing argument at the guilt-innocence phase — which itself comprised a complete breakdown of the adversarial process,1 though one without the degree of prejudice required under Strickland v. Washington — had the unquestionable effect of consolidating all of Messer’s defensive efforts into a single win-or-lose attempt at the sentencing phase to avoid the death penalty. It is most significant that this closing argument was made to the same jurors who shortly thereafter would determine Messer’s fate. In light of this fact, I find it incomprehensible and certainly detrimental to his purported trial strategy that Sawhill would emphasize the horror of the crime by making the following statements to the jury:
I don’t think in a situation like this there’s anything that I can say except to say thank God this is over.
I dare say you’ve got five hundred years of common sense and experience and there is not one bit ... not one bit that’s seen anything like this before and I pray to God that none of you or myself, or the other people in this courtroom, will ever see anything like this again.
These comments, under the asserted purpose of establishing the jury’s trust, could only have increased Messer’s burden of proving in the subsequent phase of the trial that mitigating circumstances outweighed aggravating circumstances. The unreasonableness of these statements is immediately evident when considered in conjunction with the fact that one of the foreseeable issues at sentencing was whether the offense was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of the mind, or an aggravated battery to the victim.” O.C.G.A. § 17-10-30(b)(7). Therefore, although Sawhill’s closing argument at the guilt-innocence phase does not alone justify *1096reversal, it did adversely affect Messer’s chance of receiving a life sentence in the later proceedings. Moreover, it foreshadowed Sawhill’s own implied acceptance of the death penalty in his final closing argument at the sentencing phase.
The testimony elicited from Messer’s mother during the sentencing proceedings was the only evidence submitted in his behalf. The mother’s narrative account of her son’s being beaten by a father who finally left them and his losing his grandfather to suicide poignantly implied a request for sympathy from the jury. Her description of Messer’s struggles with his schoolwork and his later commitment to his jobs and his own family similarly paints a picture of a young man deserving pity. In these respects, Sawhill did ensure that at least some mitigating evidence was presented to the jury, though its substance was not corroborated by other witnesses.2
The effect of this evidence, however, was completely undermined when the mother answered Sawhill’s final question with the statement that she and Messer expected and were reconciled to the death penalty. The statement was not “spontaneous” or “unexpected,” as the majority contends. To the contrary, Sawhill knew from previous discussions with Messer’s mother exactly how she would answer the question. Sawhill may have instructed her on prior occasions not to mention that Messer was anticipating the death penalty, but at trial he interrupted her narrative with a question that he could only have expected her to answer as she did:
Q: Has Jimmy told you anything about what he expects is going to happen? A: Yes. Jimmy and I have talked consistently about it and he and I both, my sister, and my mother expect the death penalty here ..., and since this has happened ..., Jimmy has got saved, he’s confessed his sins to Christ, and he told me, he said “mama, the Lord has forgiven me____”
Thus, at the prompting of Messer’s attorney, his only mitigating witness related both her opinion and his that the balance of aggravating and mitigating circumstances would yield a sentence of death. To have elicited such testimony was manifestly unreasonable.
*1097SawhilFs closing argument at the sentencing phase reflected a similar reconciliation to the death penalty on his part. Described as a “nonargument” by the magistrate, and not even discussed by the majority, Sawhill’s brief argument contained not one reference to the mitigating testimony previously given by Messer’s mother. Instead, it focused on the awesome burden placed on the jury in determining Messer’s fate and the fortitude that would be required of a juror to decide to let him live, as if the easiest and most obvious verdict were the death sentence. By all reasonable standards, Sawhill simply failed to advocate for his client:
I dare say, and it has been suggested to me ..., that I ought to argue to this jury to leave him alive is a more cruel punishment because he’s got to live with it, so I don’t know what to say to you. I really don’t.
More importantly, Sawhill intimated that in his opinion as well the balance of aggravating and mitigating circumstances yielded the death penalty:
[Your decision is] an awesome responsibility and I dare say I would rather be over here than in y’all’s seats, because as a parent under these circumstances ... but that’s for y’all to decide, [ellipsis in original]
Surely this conduct cannot be explained as a means of establishing the jury’s trust. Nor did these statements purport to humanize Messer in any way that I can understand. Moreover, the statements do not comprise a “nonargument,” for they were more damaging to Messer than no representation at all. As previously held in King v. Strickland, supra, 748 F.2d at 1464, emphasis in closing argument at the sentencing phase on the reprehensible nature of the defendant’s crime militates in favor of a finding of ineffective assistance. In my view, the harm caused by Sawhill’s statements in this case is at least as great as that caused in King.
In sum, despite his acceptable choice of trial strategies in this case, Sawhill’s conduct at the sentencing phase in “humanizing” his client faltered to such a degree that a complete breakdown in the adversarial process resulted. No one addressed the jury and said that Messer did not deserve to die. Incredibly, the testimony and closing argument in Messer’s behalf implied just the opposite. Viewed in its entirety, then, Sawhill’s conduct at the sentencing phase was clearly unreasonable. The total lack of adversarial testing undermines my confidence in the outcome. A reasonable probability exists that, given a proper adversarial proceeding, at least one juror would weigh aggravating and mitigating circumstances differently. Therefore, I would reverse the decision of the district court and remand for a new sentencing hearing.
. The majority distinguishes between a "tactical retreat” and a "complete concession” of the defendant’s guilt, placing Sawhill’s closing argument in the tactical retreat category. Similarly, the majority concludes that the closing argument contained no "express” concession of guilt and any implied concession was “arguably unavoidable."
Fairly speaking, these conclusions are incredible. Only moments after the State’s attorney, Mr. Sammons, had argued that the evidence could leave no doubt in the jurors’ minds that Messer had killed his niece, Sawhill flatly stated: "I would be no less honest with each and every one of you if I tried to tell you the evidence said something other than what Mr. Sammons indicates occurred on that day so I’m not going to.” That, quite simply, was an express concession of guilt. It states affirmatively that only a guilty verdict could honestly be rendered. More importantly, this express concession was not "arguably unavoidable.” Sawhill could have said nothing at all. His desire to show the jurors that he was being honest with them in no way required a concession of guilt at this stage of the proceedings. As I understand "prevailing professional norms,” see Strickland v. Washington, supra,-U.S. at-, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, Sawhill could reasonably have agreed with the guilty verdict, if at all, only after it had been returned. Furthermore, under the facts of this case, a trial strategy that mandates a concession of guilt before the jury even considers the question assumes that the jurors will not impartially perform the separate and distinct responsibilities assigned to them at the guilt-innocence and sentencing phases of the trial. In other words, such a strategy assumes that the jury will only find defense counsel credible at the sentencing phase if he previously conceded that his client was guilty. The proper assessment of claims of ineffective assistance cannot tolerate such an assumption. We must presume that the jury was "reasonably, conscientiously, and impartially applying the standards that govern the decision.” Id. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Nevertheless, the unreasonableness of Saw-hill’s closing argument at the guilt-innocence phase is alone an insufficient ground for reversal. I agree with the majority that, because the evidence of guilt in this case was overwhelming, Messer cannot establish prejudice. It is not reasonably likely that, had Sawhill not conceded guilt, the jury would have pronounced Messer innocent.
. The record reflects some uncertainty as to whether every potential witness who volunteered to appear and testify in Messer’s behalf was interviewed by defense counsel. The magistrate found that Sawhill contacted everyone whose name had been furnished to the defense. Yet the record contains affidavits from friends and former employers who state that they notified counsel of their willingness to help but were never contacted. The magistrate’s opinion does not mention these affiants. The majority opinion concludes without elaboration that Sawhill spoke to "most" of the character witnesses who were available.
Mitigating evidence was especially important in this case, not simply because of the overwhelming evidence of guilt but because of "the attitude in the small rural county where the murder occurred." Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir.1985). The community was outraged, and Sawhill encountered widespread reluctance even among family members to help in Messer’s defense. Community pressures against assisting the defense were so pervasive that the two attorneys first appointed to represent Messer asked the trial court if they could be replaced. In these circumstances, the need for mitigating evidence is particularly great, and the attorney’s duty to find such evidence and present it effectively increases in direct proportion. Id.
Messer had no prior arrest record and had been satisfactorily employed. These facts were neither presented nor argued to the jury as they should have been. Id. Messer’s honorable service in the military was not mentioned. His church attendance and other religious activities could have been described in detail but were not. I offer no opinion as to whether Sawhill’s failure to ensure the presentation of mitigating evidence such as this comprises, in itself, ineffective assistance of counsel. The absence of such evidence, however, most certainly contributed to the total breakdown of the adversarial process at the sentencing phase of the trial. After Messer’s mother stated that she and her son were reconciled to the death sentence and Sawhill intimated a similar personal view, all the jury had left for mitigation was the testimony from Messer’s mother concerning his past, which was vastly incomplete. See King v. Strickland, supra, 748 F.2d at 1463-64 (“attorney’s failure to present available character witnesses in mitigation and his weak closing argument constituted both an unreasonable professional performance by the attorney and impermissible prejudice”).