concurring in part and dissenting in part:
I agree that the special circumstances instructions were constitutionally deficient, and that Wade’s counsel, S. Donald Ames, rendered ineffective assistance at the penalty phase. Accordingly, I concur in Parts I, II, V, and VI of Judge Canby’s opinion. However, I find the conclusion inescapable that Ames’s assistance at the guilt and sanity phases also fell far below the constitutional standard, and that, as a result, one’s confidence in the outcome of these proceedings is necessarily undermined as well. Therefore, I dissent from Parts III and IV of Judge Canby’s opinion.1
I.
Whether or not Ames spent only twelve and a half hours on this case prior to trial, as his billings reflect, the record makes it abundantly clear that his pre-trial investigation and trial preparation were sorely deficient. Ames took over this case from prior counsel on December 29, 1981. Jury selection was set to begin on February 1,1982. Yet Ames did not seek a continuance to prepare, despite the fact that the essential information on Wade’s mental health was nowhere near complete. As a result of his failure to seek a continuance, Ames took the case to trial before he had developed any real theory of the defense, and before he had received any reports from several critical psychiatric witnesses. Given the very strong evidence that Wade either was legally insane or could not form the necessary intent to kill at the time of the crime, and given the nature of Ames’s performance throughout the proceedings, there can be little doubt that Ames’s nonfea-sance is “sufficient to undermine confidence in the outcome” of the guilt and sanity phases of the trial, and not just of the penalty phase. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
At the time of jury selection, Ames appeared to have settled at least provisionally on a diminished capacity defense. This choice was highly unstable, however, for several defense experts had neither completed their examinations of Wade nor provided Ames with their conclusions. One of the key experts, Dr. Allison, did not even hold his first interview with Wade until March 8, 1982, shortly after the trial had started. After this interview, he reported to Ames that Wade might suffer from multiple personality disorder. Two other experts, Drs. Conrad and Rath, informed Ames of similar conclusions within the next week. It was only after receiving these reports that Ames changed the plea from not guilty to not guilty by reason of insanity.
When representing a criminal defendant, and particularly a capital defendant, an attorney has a duty to investigate potentially meritorious defenses prior to trial. Although events occurring at the trial may alter the defense strategy, and defense counsel should continue to pursue factual investigations throughout the trial if necessary, the time to conduct legal and factual investigation regarding possible defenses is before the trial commences. It is inexcusable for a defense attorney to proceed to trial before he has completed the factual investigation necessary to settle on a theory of the defense. Without this most basic element of trial strategy, the defense attorney’s voir dire, opening statement, and cross-examination of the prosecution’s witnesses, as well as all the other stages of his representation, are rendered rudderless.
*1329No one could seriously doubt that Wade’s mental health was the potentially dispositive issue in this trial. Given the facts of this ease, Wade’s defense clearly and evidently depended on his mental state. In similar circumstances we have held that the failure to investigate the possibility of a defense based on mental impairment constitutes ineffective assistance of counsel. See United States v. Burrows, 872 F.2d 915, 918 (9th Cir.1989); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir.1988). Yet, rather than seek a continuance to await the results of his experts’ investigations of Wade’s mental state, Ames decided to proceed directly to trial. In so doing, he virtually assured that the information necessary for organizing Wade’s defense would not be available until after the trial had begun — after it was too late to do much of anything about it.
As a result, Wade’s defense was seriously impaired. At the time of jury selection, Ames did not know that the evidence would support an insanity defense based on multiple personality disorder. Thus, while he asked perfunctory questions regarding the diminished capacity defense on voir dire, he did not ask a single question about the insanity defense. Ames clearly recognized that this failure prejudiced Wade’s defense; when he finally decided to pursue the insanity defense, Ames moved for a mistrial precisely on the ground that he had failed to test the jury members’ reactions to this defense, and that he therefore had no indication that the jury could fairly evaluate it. As Ames testified at the evidentiary hearing below, he “made a mistake” in failing to explore the insanity defense more fully before, and, as a result, Wade was deprived of “imperative” on insanity and dissociative disorder.
Ames’s failure to complete the necessary investigations until well after the start of trial impaired Wade’s defense in another respect as well. When Ames finally settled on the multiple personality theory, his presentation of that theory was ill-considered and disorganized. Because Ames did not know the conclusions of the psychiatric experts until the midst of trial, he had no opportunity to consider how to present their testimony effectively.2 As a result, Wade was forced to hope that the jury could sort out the occasionally contradictory testimony of his expert witnesses without any real assistance from Ames.
Ames’s ineffective performance continued at the closing argument of the guilt phase. Even assuming that the majority is correct in concluding that the rhetorical effect of this argument was favorable to Wade (and I have serious doubts that it was, given the truly incredible extent to which Ames distanced himself from his client),3 Ames’s presentation of the facts and the law was patently deficient. Most egregiously, Ames failed to argue for a lesser degree of homicide, even though the evidence clearly would have supported it. Indeed, the testimony of one of the prosecution’s own experts, Dr. Hacker, would likely have been sufficient by itself to establish that Wade did not have the specific intent to kill. Yet Ames stated in his closing argument that he could not recall the substance of Dr. Hacker’s testimony. This is utterly indefensible, and it clearly stems at *1330least in part from Ames’s failure to conduct the essential factual and legal investigation before trial.
I note that Ames’s actions in this case were not an aberration. In another capital trial just a few years later, Ames “spent a total of only 40 hours preparing for both the guilt and the penalty phases of the trial,” his “trial file contained no notes or legal research, and his only substantive interview with defendant took place at the courthouse on the morning of the -start of trial.” People v. Mayfield, 5 Cal.4th 142, 19 Cal.Rptr.2d 836, 871, 852 P.2d 331, 366 (1993) (Kennard, J., dissenting).4 In the state court evidentia-ry hearing in Mayfield, a prosecutor who was attempting to defend Ames’s competence described him as “the type of attorney who seeks to win his cases by inspiration, not perspiration; by oration, not preparation.” Id. 19 Cal.Rptr.2d at 875, 852 P.2d at 370. In a capital case, inspiration and oration are seldom enough. Moreover, in this case Ames’s performance was at best totally min-spired. His oratory reads at times as if it were prepared in the prosecutor’s office rather than by an attorney whose duty it was to seek an acquittal.
Ames’s failure to carry out his responsibilities in other capital cases bolsters my conclusion that he failed to do so here. See Sanders v. Ratelle, 21 F.3d 1446, 1460-1461 (9th Cir.1994). In this ease, Ames adhered closely to the pattern described by Justice Ken-nard. As a result, Wade did not receive anything resembling the effective assistance of counsel.5
At the sanity phase, Ames simply compounded his serious guilt phase errors by failing to present any evidence or even to offer any of his oratory — inspirational or otherwise — to the jury. Even if my colleagues are correct that Ames “was not ineffective in failing to repeat the same evidence that the jury already had considered and rejected at the guilt phase,” Majority Opinion at 1319 (emphasis added), there can be no justification for his failure to present a closing argument. The question whether Wade was legally insane at the time of his crime was not at issue in the guilt phase. In finding Wade guilty, the jury did not reject his insanity defense; indeed, the jury could not even have considered it. Rather, the jury rejected the related but distinct defense that Wade had no capacity to form the requisite intent to commit first-degree murder. Yet Ames made no attempt to explain to the jury how the testimony showed that Wade satisfied the standards for legal insanity. Nor did he make any attempt to explain that Wade would be institutionalized if he were found to have been insane at the time of the crime. Given the very strong evidence of insanity in this case, I must conclude that a reasonable likelihood exists that the outcome would have been different if Ames had conducted a proper investigation, organized the defense before the trial commenced, conducted an adequate voir dire regarding the insanity issue, made an appropriate closing argument, and otherwise handled the case in a competent manner.
For the above reasons, I would hold that neither Wade’s conviction nor his sentence can stand.
II.
Although I join in the portion of Judge Canby’s opinion which concludes that Ames rendered ineffective assistance at the penalty phase, I believe it necessary to respond to Judge Trott’s assertion — which I assume he makes with tongue at least partly in cheek— *1331that our decision rewards a “skilled professional ... with a slap in the face because he wasn’t Clarence Darrow.” Opinion of Judge Trott at 5053. Carried away by the excesses of his own rhetoric, Judge Trott actually likens Ames’s wholly inadequate penalty phase closing argument in this case to Barrow’s well-known and masterful closing argument in the case of Leopold and Loeb. It is simply ludicrous even to mention Barrow’s brilliant twelve-hour plea, which raised every possible argument and touched on every possible emotion, in the same volume of the Federal Reports as Ames’s disastrous summation of less than ten minutes. Ames’s argument, in total contrast to Barrow’s, offered the jurors one and only one justification for keeping Wade alive: so that he could be a “human guinea pig.”
Few capital defendants can engage the services of a Clarence Barrow. But surely they are entitled to more than the wholly ineffective representation Wade received from S. Bonald Ames. Ames went to trial before he received the key experts’ reports on Wade’s mental condition, and his actions at trial demonstrated a continuing inability to figure out how to deal with the issue of his client’s mental state. After the jury rejected the multiple personality defense at both the guilt and the sanity phase, Ames chose to rely on that defense as the sole mitigating circumstance at the penalty phase, although the record makes clear the existence of a separate and highly significant potential mitigating circumstance — Wade’s history of childhood physical and sexual abuse. Amazingly, Ames did not rely on that independent mitigating circumstance at all during the penalty phase. Instead, he referred to the issue of Wade’s childhood history only once, and then only indirectly, when he asked him if he had told the truth about it to his psychiatrist. Otherwise, there was not a single mention during Ames’s entire examination of Wade of the physical and sexual abuse that Wade had suffered. Nor did Ames even seek during his penalty phase closing “oration” to remind the jurors about the evidence of such abuse that had been introduced during the guilt phase. Instead, Ames relied on one mitigating circumstance exclusively — the mental disorder that resulted in Wade’s body being “inhabited” by Othello.
Unlike my colleague Judge Trott, I cannot conclude that Ames’s decision to deal with the extensive evidence that Wade was abused as a child solely with a yes-or-no question was an ingenious tactic that effectively transported the guilt-phase testimony of child abuse into the penalty phase. Not only did Ames devote essentially the entire penalty-phase hearing to the presentation of evidence regarding Othello and the multiple personality issue, but his rambling closing argument failed entirely to mention the subject of Wade’s childhood abuse. Buring that argument, Ames did not seek to persuade the jury that Wade’s history of abuse was a cause for leniency; moreover, he did not even inform the jurors that they could consider that abuse as a mitigating circumstance. In light of these failures, the yes-or-no question to Wade regarding the truthfulness of his statements to the psychiatrist can hardly be termed a tactical stroke designed to bring all of the evidence of childhood abuse before the jury in the most salutary fashion. Even if that had been Ames’s intent, he immediately rendered the “strategy” wholly nugatory by failing even to refer to the subject of physical and sexual abuse in his closing argument and by failing to advise the jury that such abuse constituted a mitigating circumstance. Thus, either way, Ames’s performance was ineffective.
I find it particularly disturbing that Ames effectively abandoned a potentially powerful mitigating circumstance in favor of exclusive reliance on a theory which was rife with demonstrated pitfalls. The jury had twice rejected the defense on which Ames chose, intentionally or otherwise, to bet Wade’s life — once at the guilt phase and once at the sanity phase. Moreover, the manner in which Ames chose to present evidence of the disorder at the penalty phase — by calling forth Othello — clearly involved serious risks, risks that were subsequently fully realized. Ames knew that Othello was violent, abusive, and vile. He may not have known that Othello would all but dare the jury to sentence Wade to death. However, he had to know that the members of the jury would *1332likely be repulsed by Othello’s actions, and that, seeing Othello first-hand, the jury might well become convinced that there was no hope for rehabilitation.
As Judge Trott forcefully argues, in some circumstances the risk might well have been one worth taking. However, in this case there was no tactical or strategic reason that could justify abandoning a potentially powerful mitigating circumstance in favor of exclusive reliance on a circumstance which the jury had already, in one form or another, rejected twice before. Even if the jurors did not believe that Wade killed Joyce Tolliver while under the influence of an extreme mental disturbance, they might well have been moved by the details of the abuse he had suffered as a child. Wade’s history of abuse was clearly a mitigating circumstance that would have weighed in the penalty deliberations, but for Ames’s failure to mention it to the jury. There is no possible justification for Ames’s failure to discuss the facts regarding Wade’s childhood mistreatment with the jury or his failure to advise the jurors that sexual and physical abuse constitute a mitigating circumstance. An argument that the jury should consider Wade’s childhood abuse as a mitigating circumstance would not have detracted at all from the argument that his multiple personality was also such a circumstance. In fact, although the two mitigating circumstances would have stood independently of each other, they would also have been quite complementary. The abuse Wade suffered at the hands of “Jack” was certainly a possible cause of his mental disorder. I can conceive of no legitimate explanation for Ames’s failure to urge the jury to consider both the abuse and the resulting mental disorder as mitigating circumstances. Certainly, that failure cannot be explained by invoking the shibboleth of a “tactical or strategic choice.”
Moreover, Ames’s failure to urge Wade’s childhood abuse as a mitigating circumstance is but a part of the most serious flaw in Ames’s penalty-phase assistance: his closing argument. As noted above, Ames took less than ten minutes to present his closing argument at the penalty phase. He cannot be said, under any standard, to have done a competent job in the brief time he spent. At times, Ames’s presentation was obtuse and incomprehensible; he appears to have been fixated, for example, on the fact that the world is round. At other times, Ames expressed empathy with the prosecution and resignation that he would not be able to persuade the jury in any event. At still others, Ames made comments that do not appear relevant to any conceivable issue in the case.
In the entire less-than-eight-page transcript of the closing argument, Ames offered only one concrete reason for the jury to spare Wade’s life: “Give us an opportunity to examine a person like that, determine whether we can help others who may be like him, who may follow him, and how we can help him. A human guinea pig, if you will.” Ames never argued that Wade’s mental disorder reduced his culpability for the crime, and he never argued that Wade’s childhood abuse constituted a partial explanation for his conduct. He merely urged the jury to keep Wade alive as a “human guinea pig.” Yet Ames soon undercut even this pitiful argument against a death sentence. In the last sentence of his argument, Ames clearly averred that the death penalty might be the best result for all concerned: “As has been expressed to me by Melvin on many occasions, he can’t live with that beast from within any longer and if in your wisdom the appropriate punishment is death, you may also be giving an escape once again by analogy the gift of life to Melvin Meffery Wade to be free from this horror that he and only he knows so well.”
Unlike Judge Trott, I can see no justification in this case for a defense attorney telling the jury that a death sentence would give a mentally disturbed defendant “an escape” and “the gift of life.” Judge Trott would have us believe that these statements were part of an argument for a lesser punishment. Indisputably, they were not. They were without question an argument for execution, and there can be no doubt that the jury took them that way. It is true that a particularly clever and subtle defense attorney might in a most unusual case make the type of argument that Ames made, with the hope that it *1333would cause the jurors to try to punish the defendant more severely by withholding the “gift” of the death sentence because they were persuaded that a life sentence was a harsher form of punishment. However, a reading of Ames’s closing argument makes clear that that is not what Ames intended. Ames was not arguing that life imprisonment would be either a harsher or a sufficient punishment. He was arguing instead that the imposition of a death sentence would not be a bad decision, and might actually be good for all concerned: “considering the disorder, the emotional disturbance that the evidence has suggested to you by way of the physicians in this case and the psychologists, I don’t think that Melvin Wade, Melvin Mef-fery Wade, can actually, can be said to lose this case.” In the context of the rest of his sometimes disoriented argument, Ames seems to have been free-associating or saying whatever came into his mind at the moment. The argument smacks of lack of preparation and organization. Ames was, as some like to put it, simply thinking out loud or talking off the top of his head. In this case he unfortunately failed to consider what effect that undisciplined exercise might have on the jury’s deliberations.
By arguing that Wade could not “lose this case” even if he were executed, because an execution would provide “the gift of life” and an “escape” from the “horror that he and only he knows so well,” Ames effectively relieved the jurors of the heavy responsibility inherent in imposing a sentence of death. Ames’s argument told the jury that it need not be concerned about the awesome function it was performing, because an execution would in fact benefit the defendant. Thus, Ames removed the chief obstacle to most jurors’ willingness to vote for a death sentence — individual conscience and the fear that an error in judgment may lead to the wrongful taking of another person’s life. As a result, Ames violated the most basic duty of a defense attorney in a capital case: to seek as zealously as possible within the bounds of the law to prevent the defendant from being executed.
Despite the clear import of the closing argument, Judge Trott interprets Ames’s statements as arguing “that a life sentence without possibility of parole would be sufficient punishment given Wade’s mental condition.” Opinion of Judge Trott at 1347. He does so in a peculiar manner. He associates Ames’s argument with a line from Shakespeare and a closing argument by Clarence Darrow. The short answer to Judge Trott’s dazzling if irrelevant display of the breadth of his erudition is that neither Shakespeare nor Darrow made the closing argument in this case; S. Donald Ames did — and Ames is no Shakespeare, let alone a Clarence Darrow. Ames most certainly told the jury that an execution would be beneficial to Wade. Although Ames’s actions were undoubtedly well-intentioned, they were entirely inconsistent with his obligation to seek to preserve his chent’s life.
With the statement as to how a death sentence would ease Wade’s pain as its final flourish, the closing argument was sufficient by itself to demonstrate that Ames’s performance at the penalty phase was clearly deficient. There can be no doubt that the argument was highly prejudicial. However, I see no reason to rely merely on my characterizations of the closing argument, or Judge Can-by’s. In the appendix to this opinion, I have reprinted the text of Ames’s penalty phase closing argument. That way no one need be concerned that either Judge Canby or I have taken all or any part of it “out of context.” Opinion of Judge Trott at 1344. I am certainly willing to let the appendix stand as the test of my conclusion that Ames was ineffective. I cannot believe that any reader would want an argument like Ames’s to be the one on which his own life depended.
III.
Representing an individual who is accused of a capital offense is the most demanding, complex, and weighty responsibility in the entire legal profession. Those who undertake this responsibility — usually at a considerable sacrifice — should be commended. In California, unlike so many other states, the representation of capital defendants is frequently excellent. This is due in large part to the California Appellate Project and other organizations dedicated to ensuring, training, *1334and providing effective counsel in death penalty cases. It is due also to dedicated counsel who are committed to preserving the constitutional principles involved in those proceedings. It is unfortunate when, in a particular case, we fall short of our goal of providing effective representation. The consequences could not be more disastrous — for the defendant or for the Constitutional principles involved. When such an event occurs, the courts must move firmly and forcefully to protect the defendant’s fundamental rights. We do so here not because we wish to denigrate Mr. Ames, but because it is our obligation to enforce the Constitution. Reversing Wade’s conviction would in my view accomplish that purpose fully. Reversing only his sentence accomplishes it at least in part.
APPENDIX
Appendix to the Concurring Opinion of Judge Reinhardt
S. Donald Ames’s Full Closing Argument at the Penalty Phase of Melvin Wade’s Trial
May it please the Court, Counsel, ladies and gentlemen of the jury.
I am not speaking for the State of California. I stand before you and speak to you on behalf of just one person. And the District Attorney has used a great deal of rhetoric in describing the conduct and the kind of person that I represent, Melvin Meffery Wade.
This cause has been lengthy. You’ve taken a lot of time out of your lives to contribute to and devote to what we call justice. You have participated in a lengty [sic] process, arduous task, I’m certain that all of you have felt, when weighing what has happened to one human being and what should be done to another.
We went through the penalty phase of this case and the defense that was presented to you was known in the law as diminished capacity, and for the reason that Melvin Mef-fery Wade was insane under the law; that is, he could not conform his conduct to the requirements of law.
All 12 of you, to the extent it was necessary to return a guilty verdict, rejected that argument, that defense.
There was overwhelming evidence that that body did it, and faced with that choice, your decision was that he was guilty of murder in the first degree and that his conduct fit the description contained in both of the special circumstances. And without consideration of the mental state of Mr. Wade, if that was not a consideration, certainly the judgment of his conduct was appropriate; that is, that person, that body, had taken the life of an innocent ten-year-old child.
Having fulfilled that phase you went on to the next phase of this case, and that was to determine whether or not Melvin Meffery Wade was not guilty by reason of insanity.
You recall I made no argument to you and we submitted no new evidence on that issue. You had heard a great deal of evidence pro can [sic] con. Insanity being a product of the law, not of medical science, once again you rejected that defense contention that Melvin Meffery Wade was insane under the law and thus would have been not guilty of the crime. You found him sane.
So now we are at the end of this long journey and you are to decide what is the appropriate punishment to be meted out to Melvin Meffery Wade.
Were I charged with the responsibility of representing the People of the State of California, my position would be approximately the same as Mr. Christy’s. I don’t believe that it is fun, I don’t believe that it is honorable in the sense that I use the word, but a difficult job to ask a body to take the life of another human being, for whatever reason. But I probably would have assumed that same position that Mr. Christy assumed for you in this courtroom just a few moments ago. And that would be to disregard any evidence of mental or emotional disturbance, and certainly if one didn’t disregard it, to label it as absurd and reject it in that fashion.
But I am not in Mr. Christy’s shoes. And Melvin Wade does not have two prosecutors in this case. I have by analogy argued to you the mental condition of Melvin Meffery *1335Wade at the time of the commission of the crime through the punishment phase — I mean, strike that, through the penalty phase — I do mean the guilt phase, and I mean the sanity phase. By analogy I have argued to you or attempted to prove to you that the earth was round. I have summoned reputable physicians, psychologists, to sit in this chair and tell you that whatever label they put on it, whatever kind of sickness they described it to be, that Melvin Meffery Wade was a very, very sick young man. I did that both at the guilt and sanity phases. I kept arguing with you and trying to prove to you by analogy that the earth was round, that Melvin Meffery Wade did have this disturbance. And whatever your collective reasoning, you have rejected those contentions.
So now I stand before you and I have to say, well, at least the earth is oval, would you believe that. We are not now concerned with the legal test for insanity. We’re talking about whether or not there is an extreme mental, emotional disturbance at the time of the commission of the crime.
Now, if you believe that Melvin Meffery Wade is capable of convincing all of the people that he talked to, the doctors that I referred to, there’s no such defense available to him, there’s no such balancing for you.
I apologize to you for the testimony of— and I must refer to his testimony as that of belonging to Othello Mulet Metheen, not Melvin Meffery Wade — I apologize in the sense that it’s not the kind of testimony you would expect to hear from a court of law. It’s not the treatment that a defendant in any kind of a criminal action should afford his Honor. It’s not the kind of treatment a defendant in any kind of an action should treat a prosecuting attorney as Mr. Christy was treated by the defendant; that is, Othello in this ease. And it’s not the kind of treatment that any of the court personnel, bailiffs or otherwise, should be subjected to.
I didn’t know what the testimony would be. And I certainly apologize to you ladies and gentlemen for the language that was employed. But I felt it necessary for you to see what I had seen over the months, what the doctors had seen in the flesh over the months.
You in the final analysis are going to have the opportunity to reject that defense contention or embrace it to the extent that you don’t kill Melvin Meffery Wade.
To all intents and purposes, that man’s life is over, because the punishment that we as society will exact from him will effectively end his life, no matter what it is. If you impose life in prison without possibility of parole, you merely give Melvin Meffery Wade a license to continue to breathe, to sustain that life that beats within him, until a power greater than ours eventually will take that life. But not a real, meaningful life as we all know life to be, to love and to be loved, to enjoy oneself during our busy workdays or our recreational time. That will not be a quality of life that Melvin Meffery Wade will have if the punishment you exact is life without possibility of parole. It will be one merely of existence, waiting to die.
Of course, we all are here waiting to die. But during that process we are in pursuit of life, liberty, and happiness. That pursuit will be shut off as far as Melvin Meffery Wade is concerned.
I would say that that kind of being, normal life, if you believe that he had this kind of a disorder, certainly punishes that body to the extent that he would serve as a deterrent to those of us who are normal. To those of us who would be sick, no punishment of any kind that you could inflict would deter those kinds of people. If they are truly sick, they’re going to deport themselves as their sick mind dictates, and we of society cannot control how they will act unless we put them into an institution that segregates them from the rest of us.
So I’m suggesting that Melvin Meffery Wade be given that kind of a punishment, a continued existence until death. Give us an opportunity to examine a person like that, determine whether we can help others who may be like him, who may follow him and how can we help them. A human guinea pig, if you will. We will have shunted him to the side. Society will not have to fear the likes *1336of Melvin Meffery Wade from this day forward if that is your punishment for him.
I don’t know that I’m articulate enough or persuasive enough, and I don’t think that anybody really can be as they stand before you in the short period of time and ask you to spare the life of another human being.
I was not present April 10th or 11th to attempt to persuade whatever force motivated Melvin Meffery Wade to spare the life of Joyce Toliver [sic]. But I can assure you that I would have argued with a great deal of passion had I been given that opportunity.
I believe the die has already been cast. I think that you as individuals without consulting each other collectively based upon your past verdicts in this ease have decided what you are going to do.
When you apply the law, just remember that it’s not a simple process. By that I' mean you don’t add up the aggravating circumstances as you see them and add up the mitigating circumstances and whichever side wins, that’s who you vote for. That’s not the way you apply the law.
If you only find one — for instance extreme mental emotional disturbance at commission of the crime, the mitigating side — that one, if you give it that much weight and everything else is on the aggravating side, that’s enough to sustain your verdict of life in prison without possibility of parole.
As I said, this has been a lengthy trial and it has been hard on everybody. Believe it or not, Melvin Meffery Wade, through me, expresses his thanks to you for the time and the consideration that you all took in evaluating the evidence and your deliberations in this case.
And that’s important. Important in the sense that based upon the facts, without anything more, the conduct of that person, there have been times and places when twelve people or more or less would take a defendant out and just lynch them.
We’ve come a long way from that time. And for your consideration in this matter, Melvin Meffery Wade does thank you.
I just want to conclude with, considering the disorder, the emotional disturbance that the evidence has suggested to you by way of the physicians in this case and the psychologists, I don’t think that Melvin Wade, Melvin Meffery Wade, can actually, can be said to lose this case.
As has been expressed to me by Melvin on many occasions, he can’t live with that beast from within any longer and if in your wisdom you think the appropriate punishment is death, you may be also giving an escape once again by analogy the gift of life to Melvin Meffery Wade to be free from his horror that he and only he knows so well.
Thank you very much, ladies and gentlemen.
. Because I would hold that neither Wade’s conviction nor his sentence can stand, and would thus reverse the district court in full, I do not consider the issues raised in Part VII of Judge Canby’s opinion.
. In part, Ames's disorganized presentation is surely attributable to the trial court’s refusal to delay the case more than two weeks once Ames discovered, in the middle of trial, that a multiple personality defense would be viable. However, no mid-trial continuance would have been necessary if Ames had accepted the court’s offer of a continuance to complete his preparation before trial.
. As Justice Broussard stated in his dissent in the California Supreme Court:
If counsel’s strategy was, as the majority suggest, to convert the jury by example, his argument was not a competent execution of that strategy. Counsel did not simply admit the heinous nature of the crime, briefly say he was at first skeptical of the defense, and then demonstrate how he had become convinced by overwhelming evidence of defendant's insanity. Instead, he waxed eloquently about the horrendous details of the crime, emphasized the tragic results, and repeatedly alluded to his appointed status. Far more forceful a message than counsel's conversion was his and his wife's disgust at the crime and at the distasteful task of "representing” defendant. The jury surely detected that counsel was not wholly "converted.” If counsel sought acquittal by conversion, this strategy backfired.
People v. Wade, 44 Cal.3d 975, 244 Cal.Rptr. 905, 922, 750 P.2d 794, 811 (1988) (Broussard, J„ dissenting).
. The majority in Mayfield did not disagree with Justice Kennard's conclusion that Ames had rendered deficient performance. Indeed, Justice Mosk's majority opinion noted that Ames's penalty phase efforts were "somewhat perfunctory" and that Ames “did not undertake the kind of investigation that could have led to an informed tactical decision" not to call family members as witnesses. Id. 19 Cal.Rptr.2d at 869 & n. 15, 852 P.2d at 365 & n. 15. The majority opinion rejected Mayfield’s ineffective assistance claim solely because it concluded that Mayfield could not show prejudice, in light of the “compelling" prosecution evidence. Id.
. It inspires little confidence that the trial judge considered Ames to be one of the “top ten defense attorneys” in the county. It inspires even less confidence to know that Ames is one of only five defense attorneys authorized to represent capital defendants in San Bernardino County. See Opinion of Judge Trott at 5032.