specially concurring.
I agree that the writ of habeas corpus should be granted. I write separately because I would hold that errors under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (Ake), are per se reversible, and thus do not require a showing of prejudice. In Ake, the Supreme Court held that the state must appoint a psychiatric expert for a criminal defendant if the defendant can show that his or her sanity will be a “significant” issue at trial. Id. at 83, 105 S.Ct. at 1096. The Court reversed and remanded after it found that the defendant had *1295met the above standard and had not been provided the necessary expert. Id. at 86-87, 105 S.Ct. at 1097-98. The Court did not examine whether the lack of the expert had prejudiced the defendant.
The majority’s opinion concludes that the denial of the Ake right cannot be a fundamental error under the Supreme Court’s standard in Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). The Supreme Court’s holding in Ake, however, is based on a determination that the denial of the psychiatric expert, when the defendant meets the threshold test, creates an extremely high probability of an erroneous factual determination. 470 U.S. at 82, 105 S.Ct. at 1096. In my view, an error which creates an extremely high probability of an erroneous resolution of a “significant” issue certainly strikes at the structural framework of the proceeding. See Arizona v. Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265.
Moreover, Justice Marshall, the author of Ake, dissenting from the Court’s denial of certiorari in Vickers v. Arizona, 497 U.S. 1033, 1037, 110 S.Ct. 3298, 3300, 111 L.Ed.2d 806 (1990) (citations omitted), explained that Ake did not set out a prejudice requirement:
[The reasoning of the Arizona Supreme Court] wrongly subjects Ake claims to harmless-error analysis. In Ake, we did not endeavor to determine whether the petitioner’s case had been prejudiced by the lack of a psychiatrist. Rather, we determined that, in general, psychiatric assistance is of extreme importance in cases involving an insanity defense, and that without that assistance “the risk of an inaccurate resolution of sanity issues is extremely high.” Because the petitioner had made the threshold showing that his sanity was a significant issue at trial and the State had failed to offer psychiatric assistance, we reversed and remanded for a new trial.
Finally, I do not read Little v. Armontrout, 835 F.2d 1240 (1987) (en banc), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988), to apply harmless-error analysis to an Ake claim. In that case this court concluded that an expert was required under Ake to help the defendant address identification testimony obtained through hypnosis. 835 F.2d at 1244 — 15. I read the sentence cited at page 18 of the court’s opinion as addressing whether the defendant had satisfied the threshold standard for appointment of an expert.
Accordingly, I would hold that an Ake error does not require a showing of prejudice.