dissenting.
Because I believe that Roderick Frey has demonstrated a “reasonable probability” that but for the unprofessional conduct of counsel, the result of the penalty phase would have been different, I would affirm the district court’s order granting the writ of habeas corpus. Therefore, I respectfully dissent.
As the majority concedes, defense counsel’s reading from and reliance on a death penalty statute which had been declared unconstitutional three years earlier constitutes substandard performance and thereby satisfies the first prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The sole issue in this case is whether this error resulted in “prejudice” sufficient to satisfy the second prong of the Strickland test. It should be stressed at the outset that the Court in Strickland *370rejected an “outcome-determinative standard” under which a petitioner would have to prove by a preponderance of the evidence that the result would have been different had the petitioner been provided reasonably effective representation. Id. at 693, 104 S.Ct. at 2067. Instead, the Strickland Court defined a “reasonable probability” of a different outcome as “a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. The majority fails to accept the most obvious fact of this case: that had Frey been represented by even moderately competent counsel, a legitimate and compelling argument would have been advanced on the penalty phase why life imprisonment was appropriate. The jury never heard an effective or legally correct argument from the attorney for Frey (Frey’s “champion”) why Frey should not suffer death. The Court in Strickland also cautioned that “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Id. at 696, 104 S.Ct. at 2069. Unlike the majority, I cannot accept as fair a jury verdict of death when the defendant was represented by an attorney who labored under a long amended law, and where the law presently available afforded numerous and cogent arguments which could have been advanced in favor of a sentence of life imprisonment instead of death.
The majority concludes that no reasonable probability of a life sentence existed, finding that the jury was not “confused” by counsel’s error and the jury would in all likelihood have reached the conclusion it did even if counsel had based his penalty phase presentation on the correct statute. I disagree with both of these premises.
As an initial matter I note the obvious: a jury expects defense counsel in a capital murder case to at least be familiar with the correct and applicable death penalty statute. While it is true that the prosecutor knew the correct law and the court at the conclusion of summations instructed the jury on the correct statute, such knowledge by the prosecutor and instructions by the trial court cannot be presumed to have cured any confusion which unquestionably arose, as the majority seems to suggest. Instead, the conflicting instructions could only have added to the jury’s confusion. And of commanding significance, which the majority does not appreciate or fails to grasp, a jury looks to defense counsel (not the prosecutor or the judge) for an argument and reasoning why the defendant should not suffer death. The jury does not listen to the prosecutor for an analysis of the evidence which is cast in a light most favorable to the defendant. Nor does the jury listen to the charge of the court for reasoning which would justify a sentence of life. The jury receives the court’s charge as a neutral and objective statement of the law — not an argument for the defendant. Certainly, no jury is “tuned in” to why the defendant should be spared when the prosecutor is delivering his summation. It is obvious that the jury received no such message from the prosecutor in this case.
I do not agree with the majority’s conclusion that no “prejudice” exists to satisfy the second prong of Strickland. I believe there is a “reasonable probability” that the outcome would have been different had counsel fashioned his penalty phase presentation in accordance with the correct statute. At the least, I do not have confidence in the death verdict which the majority has rationalized into a fair verdict.
As a general matter, such a gross error on the part of defense counsel may well have served to undermine the jury’s confidence in the arguments which were made on Frey’s behalf. It is difficult to imagine that such an error would not have at least some adverse impact on the jury’s perception of defendant’s counsel and Frey himself.
More specifically, I am deeply troubled by the simple fact that Frey’s “advocate” did not advocate on his behalf. As the majority acknowledges, as it must, the prejudice question under Strickland is whether all of counsel’s unprofessional errors, taken as a whole, undermine our confidence in the result. Had counsel here simply failed to mention one applicable mitigating factor, my confidence might not be so drastically undermined. But the error was not near so minor. While Frey thought he had an attorney “representing” him during the penalty phase, the net effect was no *371different than not being represented at all. I say this since it is the major inarticulated premise of the majority that it does not matter that Frey was not represented (or incompetently represented), since the prosecutor and judge effectively represented him.
Counsel for Frey geared his entire presentation around the erroneous premise that if one mitigating circumstance was found, a life sentence was automatic. The majority may be correct when it suggests that none of the mitigating factors, standing alone, was sufficient to outweigh the single aggravating factor. The problem with the majority’s analysis, however, is that its focus is on each separate possible mitigating factor, how that factor might have been argued had counsel known it was available, and whether that particular factor would have been found to outweigh the one single aggravating factor. The majority spends just three pages discussing the impact that all of these numerous mitigating factors, taken together, might have had. The majority appears ready to concede (but it fails to do so) that had the proper statute been used by defense counsel the jury might well have concluded that three or more mitigating factors were present. However, the majority inexplicably surmises that “the jury concluded that the mitigating factors paled in comparison to the horrible nature of the contract killing.” Maj.Op. at 369.
The majority's analysis cuts both ways. Its own argument as to the nature of the crime points up how critically important it was in this case for counsel to present the applicable mitigating factors as a whole and to argue that when added together and carefully balanced against the single aggravating factor, death was not the appropriate penalty. The problem, in short, was that while the jury may have been “told” by the prosecution and the court that other mitigating factors existed under the statute, no one ever attempted.to persuade them that the sum total of those factors outweighed the one aggravating factor. As wisely noted by the district court, “the issue is not whéther the jury was properly instructed as to the law, but whether petitioner received constitutionally adequate assistance of counsel in presenting his case to the penalty jury.” Dist.Ct.Op. at 12. A state criminal trial judge instructing the jury that the statute required them to balance the factors, and a reasonably competent attorney for Frey arguing this point (while suggesting on which side the balance should weigh) are two completely different things.1 The majority fails to come to grips with the reality of how cases are decided in an actual courtroom setting: when the jury hears on summation an argument of the prosecution which is shortly validated by the trial judge, and an incorrect legal argument and no actual analysis by the defense attorney, the defendant’s fate is sealed.
The facts of Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986) bear a marked similarity to those of the case presently before us. In Woodard, the defendant claimed his lawyer was constitutionally ineffective during the penalty phase of his murder trial because counsel failed to secure for his client the benefit of a new mitigating circumstance added to the Arkansas statute before Woodard’s case was tried. The factor added to the statute which Woodard’s counsel failed to present to the jury, although it was applicable, was lack of a prior history of significant criminal activity. The court found the omission “serious and important,” noting that “[t]he whole *372question of the death penalty depends, under Arkansas law, on the jury’s discretion in weighing aggravating and mitigating circumstances.” Id. at 157.
Because “[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 threshold of reasonably competent assistance,” the court concluded that the first prong of Strickland was satisfied. Id. The court also found the error prejudicial under Strickland’s second prong. The court based its conclusion as to prejudice, in part, on the fact that the first vote taken by the jury was seven to five.2 However, the court was clearly troubled by the magnitude of the error committed and concluded that “there is a reasonable probability, in the Strickland sense, that the outcome of the case would have been different had the jury known of this clearly applicable mitigating circumstance.” Id. at 158.
Like the court in Woodard, I would conclude that the failure of counsel to present all of the applicable mitigating factors and to argue that they outweighed the single aggravating factor, was error resulting in prejudice sufficient to satisfy Strickland’s second prong.
The sentencing stage of any case, regardless of the potential punishment, is “the time at which for many defendants the most important services of the entire proceeding can be performed.” ABA Standards on the Administration of Criminal Justice, Sentencing Alternatives and Procedures § 5.3(e). The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of the trial.
Stanley v. Zant, 697 F.2d 955, 963 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).
In conclusion, I can think of few “errors” more egregious than defense counsel acting under a complete misapprehension of the applicable law at the penalty phase. The mistake most certainly “undermines [my] confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. Here, no arguments were made to the jury on the defendant’s behalf as to applicable mitigating circumstances. In my view this deprived the defendant of the only chance he had for a sentence of life instead of death. Unlike the majority I think it is more than “theoretically possible,” Maj.Op. at 350, that the jury would have sentenced Frey to life imprisonment if he had had effective assistance of counsel.
Frey is a loathsome and despicable human being. As the jury decided following the guilt phase of his trial, he surely deserves, at the least, to spent the remainder of his days in jail for the unconscionable crime he committed. But whether he should also suffer death has never been properly adjudicated by a jury which had the question competently and fairly placed in its hands. I would affirm the order of the district court granting a writ of habeas corpus.
. Moreover, in assessing the possible prejudice which may have resulted from counsel’s error as to the applicable law, we must examine counsel’s performance as a whole at the penalty phase. See King v. Strickland, 714 F.2d 1481, 1491 (11th Cir.1983), vacated on other grounds, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984); Mathis v. Zant, 704 F.Supp. 1062, 1064 (N.D.Ga.1989) (typically, ineffective assistance is shown through combination of weak closing argument and failure to present mitigating evidence). The majority concludes that counsel’s "defense of Roderick Frey- at the death penalty phase was an undeniably powerful and emotional presentation by a skilled advocate.” Maj. Op. at 358. I do not agree. The general weakness of counsel's closing must be considered in conjunction with the total and appalling failure to present and argue applicable mitigating factors. How the majority can characterize an argument as "powerful and emotional” when the argument is not even addressed to the law which the jury will shortly hear charged by the trial judge completely escapes me.
. It took the jury in this case five and a half hours to return its verdict following the penalty phase. While the majority states that this is a notably short period of time, I would point out that the timing suggests- that the vote was not unanimous the first or even the second time around.