dissenting.
I dissent.
Hayes, a black man charged with killing his former girlfriend, a black woman, and a white cab driver, received an appointed counsel who had never before tried a capital case, and whose experience in criminal law was limited to one prior complete trial, defense of a rape charge. In the penalty phase, counsel’s efforts should be characterized as practically worthless and, without much doubt, ineffective assistance of counsel.
Hayes stands convicted of murder. Yet he should not be put to death by the State unless the killing was an aggravated crime, outweighing any mitigating circumstances. He possesses a prior felony conviction for second degree murder, and has been involved in several violent episodes throughout his life. However, the psychological reports disclose at least two specific miti*353gating circumstances:1 (1) diminished capacity from intoxication; and (2) diminished capacity from mental disease or defect (paranoid ideation and mental retardation). Counsel offered absolutely no evidence of the mental defects at the penalty phase and only in passing ineffectively mentioned intoxication.2
Prior to trial, the prosecution offered Hayes the opportunity to accept a guilty plea and take life without parole. When brought before the court, Hayes would not admit guilt, and thus the tentative plea agreement collapsed. The prosecutor, perhaps unhappy by having to try the case, may have taken his revenge at trial — for little else could explain the overzealousness with which he approached his prosecutorial duty. In his closing statement, the prosecutor engaged in several improper arguments — addressing jury members by name, and urging individual jury members to put themselves in the shoes of the victim, thereby violating the basic strictures against Golden Rule argument. Equally egregious, the prosecutor went on to describe in gory detail the plight of the victims and the impact of their death on the families. And, in the face of such outrageous and prejudicial demagoguery, defense counsel sat by silently — like a bump on a log.
The contrast in this case could not be greater between a prosecutor’s overzealous and unprincipled pursuit of the death penalty and defense counsel’s passive response. The scenario, in to to, was such to deprive Hayes of a fundamentally fair trial.
I would reverse the district court’s judgment denying Hayes’ writ of habeas corpus and would remand with instructions to that court to enter judgment reducing Hayes’ punishment to life imprisonment without parole, unless the State, within such reasonable time as the district court may fix, commences proceedings to retry the ques-
tion of punishment. See Woodard v. Sargent, 806 F.2d 153, 158 (8th Cir.1986).
1. Failure to Introduce Mitigating Evidence
The majority, in determining counsel’s performance consonant with the mandates of the sixth amendment, does not adequately consider the unique character of the penalty phase in a capital case, and the important role mitigating evidence plays in that phase. The Supreme Court has recognized time and time again that the death penalty is qualitatively different from any other sentence, see, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), and has emphasized the need for “individualized consideration of mitigating factors” in capital cases. Id. at 606, 98 S.Ct. at 2965. In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed. 2d 1 (1982), the Court observed that a system of capital punishment must be “humane and sensible to the uniqueness of the individual” and held that “ ‘the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” Id. at 110, 102 S.Ct. at 874 (emphasis in original) (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 953 (1978)). Similarly, in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1988), the Court vacated petitioner’s death sentence because the jury was precluded from considering evidence that the defendant would not pose a danger to society if spared. Id. at 8, 106 S.Ct. at 1673. The American Bar Association’s Standards for Criminal Justice mirror the Supreme Court’s concerns. The Standards hold that:
The lawyer has a substantial and important role to perform in raising mitigating factors both to the prosecutor ini*354tially and to the Court at sentencing. This cannot effectively be done on the basis of broad emotional appeals or on the strength of statements made to the lawyer by the defendant. 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. Investigation is essential to the fulfillment of these functions.
Standards for Criminal Justice § 4-4.1 commentary at 4-55 (1980).
Further, section 5.2(b) of the American Bar Association Standards Relating to the Defense Function provides, “[t]he decisions on * * * what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” Standards Relating to the Defense Function § 5.2(b), cited with approval in Marzullo v. Maryland, 561 F.2d 540, 547 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978).
In Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986), this court noted, “[t]he whole question of the death penalty depends, under Arkansas law, on the jury’s discretion in weighing aggravating against mitigating circumstances.” Id. at 157. In the instant case, this balancing act contemplated by Arkansas law never took place. Counsel’s failure to introduce existing mitigating evidence prevented the jury from tempering the State’s presentation of aggravating evidence with an individualized determination of Hayes’ character and situation. Woodard, a case involving counsel’s failure to present evidence of a mitigating circumstance, teaches that the skewing of this balancing act fatally flaws a jury’s sentencing determination. As in Woodard, the sentence in this case cannot stand.
The majority attempts to distinguish Woodard by noting that counsel in that case failed to ensure that the checklist of aggravating and mitigating circumstances submitted to the jury included a pertinent mitigating circumstance, while in the case at bar the checklist submitted to the jury included all mitigating circumstances applicable to Hayes. This reading of Woodard, however, ignores an attorney’s primary role at trial, the task which renders him invaluable to the client. To render assistance which can, in any meaningful way, be termed effective, an attorney must do more than just make an appearance in court. The attorney must be an advocate in support of his client’s position. His/her role consists not just in making the jury aware of the relevant law, but in persuading the jury that that law militates in his/her client’s favor. The Woodard court was concerned not only with the omission of the statutory mitigating circumstance in the checklist submitted to the jury, but also with the obvious strategical flaw such an omission entails.3
Woodard nowhere suggests that a submission of a complete list of existing mitigating circumstances to the jury in the language of the statute, as was done here, constitutes effective assistance, without more. The delivery of an instruction containing a bare list of mitigating circumstances, absent any supporting evidence or argument illustrating their relevance to petitioner, is tantamount to no assistance at all. The jury’s abstract knowledge that evidence of “extreme mental or emotional disturbance,” “mental disease or defect,” “intoxication or drug abuse,” weighs in the petitioner’s favor is irrelevant if the jury is not shown that such evidence exists in Hayes’ case.
The majority suggests that counsel in this case did argue the applicability of one factor from the checklist — intoxication—by referring to testimony regarding Hayes’ treatment for alcoholism given in the guilt phase of the trial. However, this reference to evidence adduced in the guilt phase can hardly be termed effective argument at the penalty phase. Hayes’ alcoholism has dif*355ferent significance in the determination of his guilt and in the imposition of a sentence. Because Hayes’ drinking did not negate the specific intent required for the crime does not mean that evidence of Hayes’ struggles with alcoholism is not a potent mitigating factor at the penalty phase.4 Even if counsel presented some material relating to Hayes' drinking problem at the guilt phase, this evidence should be again presented in the penalty phase where the standard of proof is lower, the rules of evidence less stringent, and the stakes immeasurably higher. See Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981).
I must also take issue with the conclusion that defense counsel acted reasonably in failing to introduce into evidence medical and psychological reports documenting Hayes’ alcohol addiction and anti-social behavior, particularly because that report indicates the applicability of a second mitigating circumstance — impairment as a result of mental disease or defect. Dr. Kru-lin’s reports, which counsel failed to produce, documented not only a “history compatible with alcohol abuse,” but diagnosed a “past history of trauma, episodes of amnesia and apparent paranoid ideation” and condition of “borderline mental retardation.”
That the report also contained references to past violent episodes does not justify counsel’s failure to present the information contained therein as mitigating evidence to the jury for two reasons. First, such references would not have greatly changed the image of Mr. Hayes implanted in the jury’s mind throughout trial. Hayes had one day earlier been convicted of deliberately and with premeditation killing two individuals.
Further, the State in the penalty phase presented evidence of Hayes’ prior conviction, thus hammering home to the jury Hayes’ violent tendencies. Absent countervailing argument, the jury, after the State’s presentation, could only be left with a portrait of Hayes as an unregenerate savage. At that juncture, the introduction of anything of mitigating nature, even if only historical or related to character, was crucial.' Second, counsel could have called Dr. Krulin himself to the stand, or he could have made a motion in limine to keep out those matters which would be inadmissible. That counsel took neither of these routes is highly disturbing and for me serves to further illustrate that counsel served more as a bystander than an advocate.
The Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), and Burger v. Kemp, — U.S. -, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), line of cases relied on by the majority are inapposite. Counsel, in each of those cases, was concerned that the presentation of mitigating evidence would have opened the door for the state to present fresh damaging evidence previously unknown to the jury. In Darden, for example, the Court approved counsel’s decision to rely solely on petitioner’s plea for mercy, noting “[a]ny attempt to portray petitioner as a nonviolent man would have opened the door for the State to rebut with evidence of petitioner’s prior convictions. This evidence had not previously been admitted in evidence, and trial counsel reasonably could have viewed it as particularly damaging.” Darden, 477 U.S. at 186, 106 S.Ct. at 2474. Similarly, in Burger, the Court noted that counsel’s decision not to have petitioner’s mother testify, nor submit the affidavits of neighbors, made sense because both would have referred to petitioner’s encounters with law enforcement authorities and previous conviction of at least one petty offense. The record as of the penalty phase was relatively unsullied, reflecting no criminal record nor legal entanglements whatsoever, save *356the single prior conviction presented by the prosecutor. Further, as the Burger majority observed, the neighbors’ affidavits revealed defendant’s violent tendencies, and thus conflicted with counsel’s theory that defendant’s crime was not the product of his personality but rather the result of an older dominating individual’s influence. Burger, 107 S.Ct. at 3125.
In the case at bar, the available mitigating evidence neither permitted the State to introduce fresh evidence damaging to Hayes, nor thwarted defense counsel’s diminished capacity defense. The jury already knew of Hayes’ prior conviction, and thus were fully cognizant of Hayes’ checkered record. Further, the report supported counsel’s theory that Hayes, a long-time alcoholic, was intoxicated at the time of the murder.
Counsel’s failure to call Hayes’ sister to the stand is similarly suspect. The majority points out that Hayes had, prior to trial, indicated that he did not want family members testifying and reaffirmed that position when counsel attempted to call his sister to the stand in the penalty phase.
As previously noted, the penalty phase of a capital case differs greatly from the guilt-innocence portion of the trial. Hayes’ waiver of the right to have his sister testify as to mitigating circumstances cannot be termed knowing, voluntary and deliberate, see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), because counsel never explained to Hayes the different standards and purpose of such evidence to be used at the sentencing phase.The possibility that Hayes was capable of a knowing, voluntary waiver appears even more remote when one considers Hayes’ mental disabilities documented in the various psychiatric evaluations made of him. Moreover, the record nowhere indicates that counsel made even the most preliminary investigation to determine if his client’s fears as to his sister’s testimony were well-founded. Such blind deference to a borderline retarded, alcoholic client, albeit a “difficult, demanding, authoritative” one,5 does not constitute effective assistance of counsel. See Clanton v. Blair, 638 F.Supp. 1090 (E.D.Va.1986) (demanding client’s refusal to succumb to psychiatric exam or to agree to counsel interviewing relatives and friends, does not negate a lawyer's duty to provide effective assistance of counsel), aff'd in part, rev’d. in part, 826 F.2d 1354 (4th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 762, 98 L.Ed.2d 779 (1988).
In short, “[tjhere exists no indication in the record that [counsel] made any tactical decision; it appears much more likely that he abdicated all responsibility for defending his client in the sentencing phase.” Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir.1983). Counsel’s complete abdication cannot meet “the level of effective assistance required under the sixth amendment.” Id.
II. Inflammatory Remarks
The prosecutor’s comments during both the guilt and penalty stages were patently improper.6 Referring to the character of Hayes’ victims while addressing the jury violates the most basic canons of legal argument.7 Such references are grossly inflammatory and designed to activate the jury’s emotions, while overrunning their rational thought. The same can be said of the prosecutor’s references to the Bible, in which he quoted the verse “he that strikes a man and he dies shall surely be put to death.” Such selective quoting from the Old Testament is not only incendiary, but misleading.8
*357The majority correctly quotes Darden that the relevant inquiry is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden, 477 U.S. at 181, 106 S.Ct. at 2472. Further, the majority notes that several factors which led the Darden court to deny defendants’ habeas claim despite the prosecutors’ remarks are present in the case at bar.9 However, in Darden, defense counsel summed up before the prosecution, thus enabling defense counsel “to use the opportunity for rebuttal very effectively, turning much of the prosecutors’ closing argument against them by placing many of the prosecutors’ comments and actions in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner.” Id. at 182, 106 S.Ct. at 2473. Hayes’ counsel had no such opportunity to mitigate the damage inflicted by the prosecutor’s closing remarks.
Darden is further inapposite because counsel in that case did not laud the victims and describe the suffering of their families. Since Darden, the Supreme Court has explicitly disallowed the admission of such material as irrelevant and inherently prejudicial. See Booth v. Maryland, — U.S. -, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh’g denied, — U.S. -, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987). Booth concerned a Maryland statute requiring the admission of a victim impact statement into evidence. The victim impact statement was devoted to a description of the emotional trauma suffered by the family and the personal characteristics of the victims. The Court stated:
The focus of the VIS * * * is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant. As our cases have shown, the defendant often will not know the victim, and'therefore will have no knowledge about the existence or characteristics of the victim’s family. Moreover, defendants rarely select their victims based on whether the murder will have an effect on anyone other than the person murdered. Allowing the jury to rely on a VIS therefore could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill. This evidence thus could divert the jury’s attention away from the defendant’s background and record, and the circumstances of the crime.
Booth, 107 S.Ct. at 2534 (footnote omitted). The Court concluded that “any decision to impose the death penalty must ‘be * * * based on reason rather than caprice or emotion.’ The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases.” Id. at 2536 (footnote & citation omitted).
The majority stresses that the prosecutors’ remarks here were not sanctioned by the State, as was the victim impact statement in Booth. Nevertheless, the comments at issue inflamed the jury in the same manner as the victim impact statement in Booth. It is that impact on the jury which the Supreme Court held impermissible and violative of the eighth amendment.
While defense counsel’s failure to object to the prosecutor’s remarks, in and of itself, was not so egregious as to compromise the integrity of the trial, it served to further taint an already flawed proceeding. The prosecutor’s offensive remarks, in conjunction with defense counsel’s failure to present any mitigating evidence at the sentencing phase and to object to those remarks, “so undermined the proper func*358tioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). For the above reasons, I would grant Hayes’ petition and set aside his death sentence in the manner set forth above. See supra, at 353.
APPENDIX
[The defense counsel’s argument on mitigating evidence reads:]
May it please the Court, ladies and gentlemen of the jury, you have made your decision with regard to whether or nor Mr. Hayes is guilty of capital felony murder, and Mr. Hayes will have to live with that particular decision. Now I would like for you to consider the evidence that was offered here today with regard to your finding that mitigating circumstances did exist with regard to the act which you have found Mr. Hayes to have committed.
The Court has instructed you that you are not required to be convinced of the existence of a mitigating circumstance beyond a reasonable doubt. A mitigating circumstance is shown if you believe from the evidence that it probably existed.
You heard the testimony from Dr. James. He testified that he saw Mr. Hayes on May 30, 1979, that he prescribed medication for Mr. Hayes with regard to treating Mr. Hayes for depression. You heard Dr. James state that Mr. Hayes came to him because he indicated that he was losing his girl friend and that he was also seeing the health of his mother deteriorate. Dr. James indicated that he prescribed medication and gave him enough medication for four weeks. He did indicate that he did give a refill on that particular medication and that Mr. Hayes was to come back on June 20, 1979, an appointment which Mr. Hayes did not keep.
Also you have heard testimony with regard to treatment for alcoholism, and I would ask that you consider this as a mitigating circumstance with regard to the commission of this particular crime.
On your verdict form we would like for you to consider and check the block on Form Two where it indicates that the capital murder was committed while T.J. Hayes was under extreme mental or emotional disturbance.
Also we would like for you to consider Number Three where it states that the capital murder was committed while the capacity of T.J. Hayes to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication or drug abuse.
Tr. at 512-14.
. As mentioned in the majority opinion, mitigating circumstances include:
(3) the capital murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse [....]
Ark.Stat.Ann. § 41-1304(3) (repealed 1977).
. We reproduce counsel’s weak argument on mitigation as an appendix to this dissent.
. The court stressed "[a] finding of a mitigating circumstance should have been an important objective in Woodard's case, and the failure to seek the inclusion of this obvious mitigating circumstance certainly fell below the threshhold of reasonably competent assistance." Woodard v. Sargent, 806 F.2d 153, 157 (8th Cir.1986).
. Counsel’s omission at the penalty phase must be viewed in conjunction with similar omissions at the guilt phase. Counsel failed to request an instruction dealing with the effect of voluntary intoxication as posing a jury question on Hayes’ intent to commit murder. The district court held that trial counsel had been "marginally" ineffective in not seeking the instruction, but that there was no significant prejudice. While the giving of the instruction may not have changed the outcome on guilt or innocence, it very possibly may have been significant at the sentencing phase.
. See majority opinion, at 348.
. The prosecutor advised the jury that they will serve as "voices" of the victims, reminded them that the victims would "never see another sunset,” and admonished them to put themselves in the shoes both of the victim and her mother.
. "‘The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.’” Standards for Criminal Justice, The Prosecution Function § 3-5.8(c) (2d ed. 1980), cited in Darden v. Wainwright, 477 U.S. 168, 192, 106 S.Ct. 2464, 2478, 91 L.Ed.2d 144 (1986) (Blackmun, J., dissenting).
.In fact, the Old Testament does not advocate the death penalty. Rather, ancient Jewish law abhors the death penalty and sets forth such a multitude of procedural barriers as to render *357execution, in the words of Gerald Blidstein, "a virtual impossibility.” See Blidstein, Capital Punishment-The Classic Jewish Discussion, 14 Judaism 159, 165 (1965).
. These factors are: (1) there was no manipulation or misstatement of the evidence by the prosecution; (2) the statements did not implicate other specific rights of the accused; and (3) the jury was instructed that the opening and closing remarks were not to be considered as evidence. Darden, 477 U.S. at 181-82, 106 S.Ct. at 2472-73.