dissenting.
I dissent. For the reasons stated in this dissent, I would require the State of Missouri to grant Chuck Lee Mathenia a new hearing on the penalty phase of his capital murder conviction or reduce the death sentence to life imprisonment without parole. See Mo.Rev.Stat. § 565.020 (1986 & West Supp.1992).
I. INCOMPETENCE OF COUNSEL
Mathenia is well on the road to execution by reason of the carelessness and incom*455petence of his appointed public defender at trial, Donald W. Hager. See, e.g., Strickland v. Washington, 466 U.S. 668, 687-98, 104 S.Ct. 2052, 2064-70, 80 L.Ed.2d 674 (1984). Most significantly, without investigation, without objection and without giving his client proper counsel and advice, Hager permitted the jury to view Mathe-nia’s color videotaped confession. In this videotaped statement, Mathenia appeared in dirty prison garb. He was unkempt and unshaven, with long scraggly hair. Mathe-nia had a vacant disconnected stare and demeanor. He looked like a mad-demon incarnate, not unlike similar portrayals of pathological killers in horror movies.
In this dissenter’s judgment, the viewing of the videotape by the jury guaranteed the death penalty for Mathenia, regardless of any possible mitigating circumstances. I do not quarrel with the conviction for capital murders. Nor would this judge seek reversal if the confession were in the form of an audiotape or written transcript from the video. Any defense lawyer in a capital murder case worth his or her salt and possessing a modicum of competence, however, would have taken steps to prevent a client from appearing in this sheriffs televised production. Having failed in that regard, a competent attorney would have fought to keep the televised statement from the jury, so that the charged defendant might avoid condemnation to a death sentence.
This opinion technically cannot reproduce the full scenario that was revealed to the viewer of the forty-five minute videotape. The excerpted black and white photo, which has been reproduced from the sheriffs movie and attached as an appendix to this opinion, gives a glimpse of the defendant as the jury viewed him. Mathenia was seen by the jury in the worst possible light while he confessed to his crimes. This prejudicial videotaped statement unfolded in the courtroom without benefit of intervention by the defendant’s counsel, who did not come to his client’s aid either prior to the capture of the statement on video, or thereafter, by making a motion to suppress the videotape in whole or in part.
Hager’s failure to act is more egregious here than in ordinary criminal defense situations because he knew from medical reports that his client was mildly mentally retarded. App. G at 124, 127. Hager also knew that Mathenia had given a false confession to a rape charge less than one year before the statement at issue in this appeal. Id. at 130. Mathenia just wanted to please everyone. He certainly pleased the sheriff and the prosecutor in this case.
A. Incompetence in permitting sheriff to obtain videotaped confession without objection and without properly advising the client.
Hager was in court in Jackson, Missouri in Cape Giradeau when the Madison County Sheriff telephoned to indicate that Mathenia was about to confess. App. G at 124. Hager was approximately forty to sixty miles from where Mathenia was held in jail.1 As already noted, counsel knew Mathenia was mentally retarded and had previously made a false confession to rape. Counsel knew that Mathenia had refused to talk to the authorities until an attorney was appointed to represent him. Id. at 132. Counsel was aware that Mathenia had remained silent during the approximate two week confinement that preceded the sheriff’s phone call. Id. at 133. Yet, Hag-er never made any attempt to talk to his client personally, face-to-face, to determine why Mathenia changed his mind. Id. at 127-28. Hager never instructed the sheriff not to talk to his client until he or his investigator could come to the Madison County jail. Id. at 127-28, 130. He simply told his client that he could get the death penalty and then “told Chuck it was his decision.” Id. at 127.
The lack of attorney diligence and competency is vividly captured in this colloquy between Hager and Mathenia’s habeas *456counsel at the federal district court habeas corpus hearing:
Q. Knowing that Chuck had confessed to a rape that he did not commit, and knowing that he was at least borderline mentally retarded, and knowing that the doctor in his certification, I have trouble — Dr. Vicioso — in his certification, had found him to be at least borderline mentally retarded; knowing all of that, you did not make any attempt to talk to the sheriff when you received that phone call and say, “I don’t want Chuck doing anything until I get there”?
A. That’s right.
Id. at 130.
Yet, Hager knew that the events transpiring at the jail could compromise his client’s rights.
Q. Do you recall someone telling you that there was a proposal that Chuck make a statement?
A. Probably so but I don’t have any good memory on that. I know that I understood that something must be going on at the jail that they considered to' be very important; possibly they were about to get a confession. I was aware of the importance of what was happening and the nature of what it was.
Id. at 125.
Research reveals no cases that have addressed the issue of whether, in order to act as the effective counsel guaranteed by the sixth amendment, an attorney should instruct a sheriff to delay taking his or her client’s confession until he or she can be at the jailhouse during the statement. Under Strickland, however, a court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690, 104 S.Ct. at 2066. Under the facts of this case as they were known to Hager at the time of the videotaped confession, his failure to delay the confession until he could be present with his mentally retarded client was unreasonable performance. Id. at 688, 104 S.Ct. at 2065. Hager’s conduct clearly was inadequate.
B. Failure to Move to Suppress Videotape
Hager perpetuated his incompetence thereafter by failing to follow through with a motion to suppress the confession. Hag-er initially indicated, during a pre-trial conference on June 7, 1984, that he planned to file a motion to suppress the videotaped confession. App. Cl at 2. During the preliminary hearing in Madison County Circuit Court on July 19, 1984, however, Hag-er stated that he had not filed a motion to suppress the defendant’s statement at the circuit court level “for the reason that I believe that it would have no chance of success.” App. B2 at 1.
At the time of this critical decision, Hag-er knew that Mathenia confessed after two weeks of refusing to make a statement until he had been appointed counsel. App. G at 132-33. No lawyer could doubt that the videotaped statement amounted to self-incrimination for the murders by Mathenia who put himself in the worst possible light by his television appearance. Cast as the villain of that film, an Oscar was already his. Only that Oscar award amounted to a death sentence, unless somehow undone by the intervention of counsel. But counsel did nothing.
Hager’s excuse was, in effect, that a suppression motion would do no good. App. B2 at 1; App. G at 131, 171. I will not dispute that the text of the confession, either in the form of an audio statement or a written transcript, possibly may have survived a motion to dismiss. My view is otherwise with respect to the video portion of the confession. Hager might have met with partial success by moving to suppress the videotaped confession.
In the first case in which this Circuit discussed a videotaped confession, this court affirmed, in a divided opinion, the admission of videotaped statement. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972). In Hendricks, however, the videotape related only to the guilt of a defendant in a first degree murder prosecution, not the likelihood of a death penalty. Id. at 504; see also Gilmore v. Armontrout, 861 F.2d 1061, 1072-73 (8th Cir.1988) (admis*457sion of defendant’s videotaped confession to two unrelated murders at sentencing phase of capital murder trial violated no federal constitutional rights), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). In addition, the Eleventh Circuit addressed the subject of a videotaped confession in Gates v. Zant, 863 F.2d 1492 (11th Cir.) (per curiam), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 340 (1989). In Gates, however, the court only considered whether showing the defendant in handcuffs during a videotaped statement was unduly prejudicial. Id. at 1501-02.
Neither Hendricks, Gilmore nor Gates considered whether the video portion of a confession should be redacted as violative of a defendant’s basic rights against self-incrimination. That issue remains an open one. No real excuse exists for Hager’s failure to seek to suppress the confession. Nor is there any legitimate professional reason for not having argued before the state trial judge, at the very least, that the video portion of the confession should not be submitted to the jury. As Judge Hea-ney observed, “[i]n terms of effect upon the jury, the playing of a defendant’s videotaped confession at trial is the functional equivalent of requiring [the defendant] to take the stand and testify against himself.” Hendricks, 456 F.2d at 509 (Heaney, J., dissenting).
C. Other Evidence of Incompetence
In addition to Hager’s deficient performance with respect to the admission of Mathenia’s videotaped statement at trial, his investigation into the circumstances surrounding the confession was superficial at best. Hager only made a minimal effort to investigate whether Mathenia, with an approximate IQ of 70 and a mental age of ten or eleven, App. G at 17, knowingly and intelligently waived his Miranda2 rights before trial. At the time of the phone call from Sheriff Asher, Hager claimed, Mathenia seemed to understand his rights under Miranda. App. G at 177-78.
Expert testimony at the evidentiary hearing suggests the opposite conclusion. According to Dr. Daniel J. Cuneo, Mathenia was incapable of knowingly and intelligently waiving his Miranda rights. Id. at 32-33. Mathenia was “extremely impulsive” and “want[ed] to please.” Id. at 34. Sheriff Asher simply read Mathenia the standard seven line statement of the Miranda warnings, without checking to determine whether Mathenia actually understood each component of the warning. Id. at 33; see also App. B1 at 67. Mathenia appeared “completely oblivious to what they [we]re doing,” Cuneo observed. Id. at 112. Under the circumstances, Cuneo concluded, Hager’s brief telephone conversation with Mathenia failed to advise his mentally retarded client of the scope of the rights he was waiving. Id. at 34.
Hager’s conduct at the guilt phase of the trial, moreover, does little to suggest confidence in the outcome of the proceedings. Hager called no witnesses at the guilt phase and rested without presenting a defense. See App. C at 297. He failed to object when Sheriff Asher testified that Mathenia said his attorney told him “he’d get the electric chair” if he made a statement. Id. at 274. Hager made no objection to the videotaped confession on the grounds that Mathenia had not knowingly or intelligently waived his Miranda rights.
II. THE STRICKLAND STANDARD HAS BEEN MET
Under the standards for analyzing a claim of ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), defendant-petitioner Mathenia must show that Hager’s performance was deficient and that it prejudiced his defense. Id. at 687, 104 S.Ct. at 2064. “Counsel’s performance is deficient when it is less competent than the assistance that should be provided by a reasonable attorney under the same circumstances.” Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir.) (en banc) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064), cert. denied, — U.S. -, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990).
*458No further extended discussion should be necessary to arrive at the conclusion that Hager failed many times to provide the “professionally competent assistance” envisioned by Strickland. 466 U.S. at 690, 104 S.Ct. at 2066. First, by not taking action to assure that his mentally retarded client would not speak to the sheriff and incriminate himself, Hager virtually assured a death penalty. Second, after seeing his first failure, represented by the videotape, Hager performed deficiently by not attempting in any way to rectify his mistake. Counsel should have filed a motion to suppress and attempted, at a minimum, to prevent the jury from seeing the damning videotaped footage of the confession. Third, Hager acted -unreasonably by not taking other steps to avoid the death penalty, including the presentation of reasonable evidence of Mathenia’s mental retardation at the guilt phase.
Finally, the prejudice from Hager’s incompetency stands without serious erosion in the record. Mathenia’s appearance in the videotaped confession stereotyped him as a pathological killer. Without the prejudicial impact of the video, he would have come across as an aberrant mentally retarded murderer who might not deserve the death penalty. The jury, however, saw only one side of Mathenia, his demonic appearance in the videotape. The end result was far more prejudicial for Mathenia than if he had been compelled to stand trial in fully identifiable prison clothing, a practice which the Supreme Court has declared unconstitutional. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976) (fourteenth amendment prohibits the state from compelling an accused “to stand trial before a jury while dressed in identifiable prison clothes”).
III. CONCLUSION
Students of the death penalty seem to observe that, quite often, no rhyme or reason differentiates between the killer who is put to death and the killer who receives life imprisonment. As Justice Marshall observed, “[t]he task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system — and perhaps any criminal justice system — is unable to perform.” Godfrey v. Georgia, 446 U.S. 420, 440, 100 S.Ct. 1759, 1771, 64 L.Ed.2d 398 (1980) (Marshall, J., concurring) (footnote and citations omitted). This court and the Supreme Court, however, will not countenance the execution of a defendant who has not received the assistance of competent counsel. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068; Fretwell v. Lockhart, 946 F.2d 571 (8th Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 1935, 118 L.Ed.2d 542 (1992); Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.), cert. denied, — U.S. , 112 S.Ct. 431, 116 L.Ed.2d 450 (1991); Henderson v. Sargent, 926 F.2d 706 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992); Chambers, 907 F.2d at 828-33.
Here, we know that Hager has provided ineffective assistance of counsel in at least one other Missouri death penalty case. Chambers, 907 F.2d at 828-33 (granting habeas relief of a new trial on the grounds of the ineffective assistance provided the defendant by Hager). During the same general period of time that he was representing Mathenia, Hager represented a second capital murder defendant, Marvin Jones. See App. G at 142-46. Jones, like Mathenia, received the death penalty. See State v. Jones, 705 S.W.2d 19 (Mo.), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986).
In Mathenia’s case, as in Chambers, Hager’s patently deficient performance prejudiced his client’s defense. Accordingly, I would grant the writ in part and require either that Missouri resentence Mathenia to the maximum prison sentence under the law or retry the penalty phase against Mathenia.
I add a brief comment concerning Judge Beam’s assertions in concurrence relating to the motives of this dissenter and Judge *459Beam’s defense of what I consider incompetent lawyering.
The picture of Mathenia in the appendix tells only part of the story, but enough for any disinterested observer to realize that a defense lawyer is not doing his job in a capital murder case when he permits, without objection, his defendant, via videotape, to appear before a jury looking like Mathe-nia looked. Moreover, Judge Beam presumes too much in suggesting that the video was admissible in one portion of the trial but not the other, according to my opinion. As the dissent made quite specific, p. 455, the defense lawyer should have fought to keep the “televised statement” from the jury. The unfair prejudice arose from the pictures and affected the punishment, not the guilt/innocenee phase, inasmuch as the record as a whole otherwise established strongly that Mathenia had committed the murders.
Finally, contrary to Judge Beam’s understanding of my obligation as a judge of this court, I do not write from any opposition to, or preference for, the death penalty. The State of Missouri may put Mathenia to death but only after a trial in which he is afforded a defense by a competent attorney; that judicial philosophy is in accord with the views of the United States Supreme Court and of the judges of this court. See supra p. 458.
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. At oral argument, counsel for the State of Missouri estimated that the distance between Cape Giradeau, where Hager was in court, and the jail where Mathenia was being held was approximately 40 to 60 miles.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).