concurring in part and dissenting in part:
I respectfully but vigorously dissent from the majority’s conclusion that Eurus Kelly Waters received ineffective assistance of counsel with respect to his sentencing.1 The majority opinion illustrates the pitfalls of hunting through a trial transcript for alleged transgressions while making no attempt to discern the overall trial strategy adopted by defense counsel. In short, the majority today is too lost in the trees to see the forest.
Attorney Davis confronted overwhelming evidence that his client had in fact shot and killed the two women with whose murder he was charged. In Davis’ own words, the only mystery to be solved was Waters’ mental state. Faced with the impossibility of successfully rebutting the state’s factual case, Davis saw in Waters’ long history of mental illness the seeds of a more promising defense. Under Georgia law, a criminal defendant may be found “not guilty by reason of insanity” if he proves by a preponderance of the evidence that, at the time of the alleged offense, he did not know the difference between right and wrong.2 See O.C.G.A. §§ 16-3-2 (1982); Keener v. State, 254 Ga. 699, 334 S.E.2d 175, 177-78 (1985). Davis determined that he would emphasize Waters’ unstable mental condition and construct an insanity defense. This strategy had more than one potential benefit. If it succeeded, as Davis hoped, the result would be an outright “not guilty by reason of insanity” verdict. If insanity could not be proven, the extensive evidence of Waters’ mental illness might still be argued in the sentencing phase in an effort to avoid the death penalty.
To prepare his defense, Davis researched Waters’ mental condition. He interviewed a local doctor (Dr. Wiley Lewis) who had treated Waters for mental disorders, a psychiatrist (Dr. Lorenzo Lecumberri) who had treated Waters at a local mental health clinic, a psychiatric nurse (Saradell Cure-ton) from the clinic, a forensic psychiatrist (Dr. Miguel Bosch) who had several sessions with Waters following his arrest, and a psychologist (Jerry Bowman) who had assisted at those sessions. Later, after Waters had been sent to Central State Hospital for still further examination, Davis spoke with the medical director of the hospital’s forensic services division (Dr. Hosea De La Torre), who had had three or four interviews with Waters. In addition to these experts, Davis interviewed Waters’ wife and other members of his family.
Davis’ investigation revealed that Waters suffered from paranoid and schizophrenic tendencies, delusions and hallucinations, and sudden mood swings ranging from calmness and apparent happiness to depression and aggressive, hostile behavior. Davis learned that persons with paranoid schizophrenic tendencies can be successfully treated with anti-psychotic drugs; when a patient is taking the medication, the psy*1499chotic symptoms disappear and the person seems perfectly normal, but if medication is discontinued, the old symptoms reemerge. He discovered that Waters had previously been committed to a mental institution, but that, after his release, doctors were attempting to control Waters’ symptoms through drug therapy on an outpatient basis. Finally, Davis learned that Waters had not been taking his medication for some weeks prior to the murders.
This information became the foundation for the defense’s theory at trial. In his opening statement, Davis laid the groundwork, explaining to the jury that his client’s “not guilty” plea was not based on Waters’ not having committed the acts in question but, rather, on his mental condition at the time. ' After the prosecution rested, Davis called his witnesses.
First, Dr. Wiley Lewis, the general practitioner who had treated Waters for mental problems, took the stand. Davis elicited testimony from the doctor that Waters was suffering from mental illness in 1976, with schizophrenia “a distinct possibility.” Trial Transcript at 872. Dr. Lewis stated that he had prescribed Thorazine, an anti-psychotic drug, for Waters’ “agitation, anxi-. ety, and restlessness.” Id. .
Saradell Cureton, the psychiatric nurse at the Way cross Mental Health Clinic, testified that she first met Waters in 1978, when he voluntarily came to the clinic to seek help. Ms. Cureton remembered that Waters was depressed, suffered from “feelings of violence,” id. at 911, and “was filled with a great deal of fear about himself,” id. at 882. She reported that Waters “was getting messages from God that were disturbing him [and he] had a great deal of fear about his own actions and reactions.” Id. at 882. Ms. Cureton was sufficiently concerned about Waters to refer him to a psychiatrist, Dr. Lorenzo Lecumberri, for evaluation.
.Dr. Lecumberri testified that his interviews with Waters in 1978 and 1979 had led him to diagnose .“schizophrenia, paranoid type.” Id. at' 951-52. In response to Davis’ questions, he defined schizophrenia as “a mental disease ... that affects [a person’s] thought and his behavior,” and paranoia as “delusional persecution.” Id. at 952. To help Waters, the doctor prescribed Mellaril, also an anti-psychotic drug but stronger than Thorazine. He explained that Mellaril “improve[s] the thinking and the thought of the patient[,] ... decreases the activity of the patient, and controls the anger or hostility the patient has.” Id. at 954. When Dr. Lecumberri last saw Waters, in the fall of 1979, Waters had been on Mellaril for approximately one year. The doctor described him as being “in good contact” and “not psychotic” on that occasion. Id. at 953. He emphasized to Waters the importance of continuing to take the medication. Id. at 955.
Dr, Miguel Bosch, the forensic psychiatrist from the Georgia Regional Hospital in Savannah who examined Waters after his arrest, concurred in the diagnosis of paranoid-type schizophrenia. He testified that Waters was pleasant and cooperative during their first session, pointing out that Waters was once again on Mellaril. . When Waters returned from Central State Hospital, however, Dr. Bosch noticed that he was uncomfortable, tense, depressed, angry, and not sleeping as well; his medication had been changed to a less powerful drug. Davis asked Dr. Bosch what would happen if, sometime prior to committing the acts in this case, Waters had been taking an anti-psychotic drug and then stopped altogether. The doctor suggested several possibilities. First, Waters might become a little more uncomfortable, shakier, more nervous, more depressed, and have more difficulty sleeping and getting along with people. Second, his condition might become worse — he might become very withdrawn and unable to function, or he might hallucinate and start to feel persecuted. Finally, in the worst event, he might become acutely psychotic. Jerry Bowman, the psychologist who interviewed Waters along with Dr. Bosch, testified that Waters had not been taking his medicine at the time of the murders.
The final expert witness was the medical director of the forensic services division of Central State Hospital, Dr. Hosea De La *1500Torre, a psychiatrist. Although he disagreed with the specific diagnosis of paranoid-type schizophrenia, Dr. De La Torre confirmed that Waters was mentally ill and that persons with his particular mental problems react differently than normal people do. In the doctor’s words, people with. Waters’ mental disorders “exaggerate [their] actions [and] become violent at times.” Id. at 1015-16.3
In addition to these experts, Davis called friends and family members. Jimmie Lee Sapp, a fellow churchgoer who received his license to preach at the same timé that Waters received his, testified that he knew Waters as a good, quiet, religious man. Waters’ wife testified that she had' seen him in times of great anxiety when he would become hyperactive and talk uncontrollably for up to five hours. She told the jury that his behavior was often confusing; on the night he realized that he might have killed the two women, she was so afraid he might harm himself that she hid his gun. Waters’ sisters and brother-in-law testified about his initial horror at the thought that he might have killed the two women and about his extreme remorse and despair when he realized that he most probably had.
Then Waters himself took the stand. Later, at the evidentiary hearing in state court on Waters’ claim that Davis’ performance was substandard, Davis would explain that he called Waters to “allow the Jury to form a clear idea of what Kelly Waters was like as a person.” The majority contends that “[tjhere simply was no justifiable reason for putting Waters on the stand.” Ante, at 1495. Davis’ strategy, however, is clear. By the time Waters testified, the jury had heard ample testimony suggesting that Waters was, in effect, two different persons: the paranoid-schizophrenic, out of touch with reality and capable of losing control when not medicated, and, in contrast, the medicated, unemotional, normal-appearing witness the jury observed in the courtroom. Waters was not called for the purpose of reciting personal details; he was called to “solve the mystery” of which personality was ascendant during the tragic events on Jekyll Island.
Davis first established that Waters’ intent in accosting and handcuffing the two women was to have sex, not to kill. He then had. Waters testify that he made the women lie down on their backs still handcuffed to one another, made Mrs. Culpep-per undress from the waist down, and performed oral sex on her without attempting to do more. At this point, Davis began the exchange that so baffles the majority:
Q. And. during that time, what was Miss Paseur, the younger of the two ladies, doing?
A. Well, she was laying side of Mrs. Culpepper, but she was very hysterical and she was screaming at Mrs. Culpepper.
Q. Screaming?
A. Yes, sir.
Q, All during that time?
A. Yes, sir.
Q. Do you remember the words she said?
*1501A. The only thing that stands out is she accused Mrs. Culpepper of enjoying what I was doing to her.
Q. Is that a fact?
A. Yes, sir.
Trial Transcript at 1157-58 (emphasis added.)
Immediately after this exchange, Davis established that Waters allowed the women to get up and' dress. It was then that, according to Waters, the two women “lunged” at him. Up to that point, Waters had perceived no threat from the women. In his version of events, while he was assaulting Mrs. Culpepper, Miss Paseur was not struggling with him; she was just screaming. She was not even screaming.at Waters; she was screaming at Mrs. Cul-pepper. Then, with the two women on their feet lunging toward him, the man whose psychotic tendencies, delusions of persecution, and lack of control had. been repeatedly emphasized throughout the defense’s case — the man who had not been taking critically necessary medication— perceived a threat from his victims and fired his gun at them. Davis’ line of questioning may not have been the one the majority today would have adopted, but it is certainly well within the permissible range of strategic choices that the Supreme Court cautions us not to second-guess. See Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984).
In his argument at the sentencing phase, Davis built upon all the psychiatric evidence adduced during the guilt phase. He began by depicting Waters as a man in search of his identity, a man who had twice attempted to commit suicide, a man torn between good and evil. He reminded the jury that the same man who was called by God to preach sermons at his church at other times went around with handcuffs and a gun. Davis continued:
Here you have a man, goodness only knows what kind of a storm was taking place in his mind and in his brain. You don’t know. Maybe he didn’t know. His wife certainly didn’t know. But we know this much from the evidence in the case, whatever it was, whatever torment he was suffering, whoever it was winning, either the Lord or the Devil, for control of his behavior, we know that that behavior impelled him to- go to the Mental Health Clinic in Waycross, Georgia, and talk to Miss Saradell Cureton and be interviewed there.... [H]e said, “I am afraid; I am afraid I am going to kill somebody.” You’ll have that [evidence] out with you [when you deliberate], At that time, he didn’t know whether the forces of evil were going to take control of him; or the forces of good.
Trial Transcript at 1345-46. Davis reminded the jury of the psychiatrists’ diagnoses that Waters suffered from paranoid schizophrenia and of his need for medication — the missing “crutch that he’d been using to keep himself under control.” Id. at 1346. Davis argued that Waters’ failure to take the prescribed drug was his undoing. “That let him come unraveled. That let him become a prisoner to the forces of evil that took charge of that poor, human mind that was trying without success to direct his footsteps.” Id. at 1346-47. Davis went on to emphasize • the remorse and “great tearfulness — a great emotional upset,” id. at 1347, that followed Waters’ realization that he had probably killed the two women.
After this very sympathetic portrayal of his client, Davis proceeded to present what the majority terms “a request to allow a specimen to be studied.” I juxtapose the section of the argument reproduced by the majority and the immediately preceding section, because I fail to understand how anyone could look at the argument as a whole and still conclude that “Davis essentially gave the jury two choices: (1) keep Waters alive so that those interested in mental illnesses could conduct experiments upon him and study him, or (2) put Waters to death.” First, the section not included in the majority opinion:
I was interested in what [prosecution rebuttal witness, psychologist] Dr. [Gerald] Lower, the head of our Mental Institution there at Georgia State Hospital had to say about the drugs that are used *1502to treat schizophrenic patients. ■ You know, he said — I said “How early do they date back to?” “Oh, I think to the fifties, to the fifties.” All right. We've got a disease here that is brought, been brought out into evidence that you can’t see, you can't hear it, you can’t smell it, you can’t feel of it, none of your senses divulges its presence_' You cannot find the source of it. But lo and behold, our medical scientist and our pharmaceutical profession in the fifties came up with a drug that had an effect on that disease. Now that was a major development in our society. It’s a major development that’s felt every day by almost every family that you can think of, including the family, no doubt of some of you who are sitting on this Jury. That development of controlling that type of a disease with a drug. Do you know what would have happened to Kelly Waters twenty-five years ago had he walked into that Mental Clinic in Waycross, ... if he’d walked up to a doctor or psychiatric practitioner of some kind and told them what he said, “I feel uneasy; I feel anxious; I feel nervous; I feel like I’m going to kill somebody.” He would have been committed. And this would never have happened. That’s one of the bad side effects of having drugs that treat diseases like this, I say to you. It’s one of the penalties we have to pay. What did happen? First, it must have happened in Dr. Wiley Lewis’ office because he immediately, well, “I’ve got a man here very upset. I don’t want him to shoot anybody. I don’t want him to go off his rocker. I don’t want something bad to happen. I’m going to give him some Thorazine, an anti-psychotic drug.” So he did. It straightened him out to some extent. He made it all right a few months, but then he got back in trouble again with his own mental disturbance and went to the Clinic in Waycross. What did they do: We’ll put you on another drug that’s been found since Thorazine, Mellaril, another anti-psychotic drug that had come along newer. The doctors must have said “Oh boy, we’ve got a new pill. Science is magic. Science can cure anything.” Yes, science can, if you continue to take it and if they monitor you, the medication very closely, and if you do exactly what you’re supposed to do, you won’t get locked up. You won’t kill anybody. It won’t happen. But if you don’t take it like you’re supposed to, or if it doesn’t act just like it’s supposed to, if you withdraw from it, goodness knows what’ll happen. That’s the kind of ogre that exists and lives in our society today, not just in this case but in others. But this is a prime example of what can happen and what did indeed happen in this case.
So, I say, that if it weren’t for the pills, if it weren't for our worship of the magic that the medical profession attaches to these pills, and that we as lay people, non-medical people attach to them, and if it weren’t for the fact that we hate for our Mental Hospital to get any more crowded than they already are, and if it weren’t for the fact that we want to have people walking around in society if we can permit them to, if that hadn’t have occurred in our society in the last twenty-five years, this crime would never have occurred. Would never have occurred.
Id. at 1349-53.
Immediately thereafter, Davis presented the portion of the argument that the majority reproduces:
Can any good come out of this case? I’ll say it can. I’ll say the good that can come out of it would be this. We know what happens to a case similar to Kelly Waters when he refrains from taking drugs. We’ve found out to our sorrow, to the utter shame of the County, to that event which brought so much sadness to the wife, to the families of the victims in this case, to that occasion which brought so much sadness to the family of the Defendant in this case. We found out what would happen. I say if he is allowed to serve a life, a sentence of life imprisonment, he is a living subject that can be studied, that upon whom the effects of drugs can be determined with more certainty than it can be now. He is a prime case of what can happen if he doesn’t take drugs and what steps may *1503be needed by society to ensure that a man in his boots needs to take drugs and needs to be put under such circumstances as you either know he’s on drugs or else he’s in a condition where, where nothing, no harm can come from him if he refrains from taking them. You’re going to make him responsible for taking them? Well, he’s a nut to start with.... You can’t depend on that. But in his case, you can. In his case, he’s an ideal subject for the medical profession to say, all right, here is a man, called to God one day, called to a pistol and handcuffs the next day. He’s got that kind of split personality. He doesn’t know whether to serve the Lord or serve the Devil. He doesn’t even know whether he wants to be a person or not. We’ll take him. We’ll experiment with him. We’ll find out more about what can, the limits of activity in his case. We’ll use him for the good of society, so that an offence of this nature will not be repeated. That’s the human thing to do in this case. It’s the socially advisable thing to do. I agree this sort of thing excites the basest emotions I suppose that can be excited in the human breast; revenge, lack of mercy, all of those kinds of emotions are excited in the mind of any normal person that heard this evidence. Of course, it is. But what is the socially acceptable, merciful, biblical, Christian thing to do here? I say don’t kill him. Don’t rub him out. Don’t put him out of existence. Keep him. Study him. Learn about him. Keep him so he can’t do anybody else any harm. Maybe from the result of his continued life, the results will make, the results of continued examination of him and a study of him will make it possible that the lives of more innocent people will not be sacrificed. I ask you to consider that.
Id. at 1353-55. Davis concluded by appealing to the jurors to “let this man continue to live in the interest of serving, doing your duty as an enlightened citizen facing up to the tremendous responsibility that the law vests upon you in this case.” Id. at 1355.
Davis did indeed suggest to the jury that Waters might serve as a useful case study. But, even putting aside the opening portion of his argument where he emphasized Waters’ personal torment and his remorse, Davis’ history of how paranoid-schizophrenic patients have been treated by the medical profession — and dealt with by society— did more. Davis told the jury that society has made a choice: patients who would once have been committed to mental institutions are now released among the general population. The medical and pharmaceutical professions have made that choice possible by developing drugs to control such patients and minimize the likelihood of their doing harm to others. The patients are under control, however, only if they take the medicine they need. A patient may fail to do so for many reasons; as Davis suggested, such a patient is severely disturbed to begin with and cannot always be trusted to take the medicine without which he becomes a danger to himself and to others.. But society has not merely decided to reduce the population of mental institutions; it releases medicated patients without at the same time establishing programs to guarantee that the patients remain medicated. So we have, in effect, made another choice: we will allow severely disturbed people to live among us, and while we will prescribe drugs to render them less dangerous, we will not oversee their continued use, although we know that not all patients will remain medicated at all times; therefore, we must accept the damage they do when they fail to keep themselves medicated. The thrust of Davis’ argument was that the psychotic, unmedi-cated Waters was not solely responsible for his actions; a society that no longer commits such persons to institutions but chooses instead to medicate them and then fails to follow up and guarantee continued medication bears much of the responsibility when the patient loses control and commits a violent act.
Davis’ argument began with a reminder of Waters’ mental illness, his personal torment, and his remorse. It ended with a plea for Christian mercy and coupled the plea with a way for the jurors to salvage some shred of good from a tragic chain of events, a chain in which the jurors themselves were remote participants as mem*1504bers of a society that has made its choice. I see nothing dehumanizing in that appeal. Indeed, I regard Davis’ argument and the entire strategy that led up to it as not only reasonable but also persuasive. Whereas the majority seems to be shocked at the approach which Davis took, I am astonished that that approach did not succeed in persuading at least that “one juror” Davis was hoping to reach.
Because I believe that Davis took a difficult case, fashioned a promising defense, and presented his theory commendably, I must strongly dissent from the majority’s holding that Davis rendered constitutionally ineffective assistance of counsel with respect to his client’s sentence.
. The majority criticizes Davis for adopting an insanity defense even though none of his expert witnesses could testify that, in their opinion, Waters did not know the difference between right and wrong at the time of the crime. Under Georgia law, however, the jury makes the sanity determination for itself with or without the aid of expert testimony. See Moses v. State, 245 Ga. 180, 263 S.E.2d 916, 918 (1980); Briard v. State, 188 Ga.App. 490, 373 S.E.2d 239, 241 (1988). Given the extensive testimony from both expert and lay witnesses concerning Waters’ mental condition and from Waters himself concerning the circumstances of the shootings, see infra, there was ample evidence to serve as the predicate for a jury finding of at least temporary insanity.
. The majority criticizes Davis for not introducing all the available mitigating evidence concerning Waters’ mental condition. See ante at 1494. I am at a loss to know what more the majority would have had Davis do. Much of the material referred to in the affidavits presented to the state habeas court simply duplicated the evidence introduced at trial.
Dr. Bosch, for example, testified at length about Waters’ paranoid-schizophrenic condition: his feelings of persecution, anxiety, loss of control, anger, depression, and his great need for continuous drug therapy in strong doses. See Trial Transcript at 976-85 (direct), 998-1003 (redirect). Surely the majority cannot be seriously concerned about the doctor’s not characterizing Waters’ disorders in so many words as "mitigating factors,” although its opinion is susceptible of that inference. See ante at 1494 (”[A]lthough Davis elicited much unfavorable testimony from Dr. Bosch, he failed to elicit available favorable testimony, specifically, Dr. Bosch's opinion that Waters has a ‘serious mental disorder' that should be considered a ‘strong mitigating factor' and his opinion that Waters does not appear to have a ‘criminal type personality.’ ” (emphasis added)). I cannot believe that, even if Davis had tried to do so, the prosecutor and the trial judge would have allowed Davis to elicit from Dr. Bosch or any other witness what would amount to a jury instruction on mitigation.