concurring in part and dissenting in part:
Nay, lay thee down and roar;
For thou hast kül’d the sweetest innocent
That e’er did lift up eye.1
Melvin Wade killed 10-year old Joyce Tol-liver. Over a 22-hour period spanning two days, Wade punched her, hit her with a board from a broken couch, locked her in a dufflebag which was placed in a crawl space in the ceiling, slammed her head into a wall with such force that her head penetrated the wall, hung her by her neck from a wall using a dog leash, stomped on her chest, and made her drink her own urine. During the abuse and torture, Wade complained that “they” had turned him from a sweet and gentle man into a madman.
Wade later claimed that an alternate personality residing inside his body called “Othello” actually tortured and killed young Joyce. We may never know what precisely drove Wade to commit these terrible acts. We do know that a jury, after hearing all the evidence, provided “the censure of this hellish villain”2 by finding Wade, not “Othello,” guilty of first-degree murder and sentencing him to death.
*1337But the curtain on this tragedy has yet to close. Wade stands before us seeking habe-as relief. The majority finds constitutional error in the penalty phase of Wade’s trial; I do not. Because I find no merit in any of Wade’s claims, I would affirm the district court’s denial of habeas relief.
I respectfully disagree with Judge Canby’s conclusion that Melvin Wade is entitled to a new special circumstances determination because the torture-murder special circumstance instruction failed to meet the requirements of the Eighth Amendment. In my judgment, the jury instructions adequately conveyed that intent was an essential element of the torture-murder special circumstance. In that regard, I agree with the California Supreme Court’s determination on this issue.
I also disagree with Judge Canby’s conclusion that the performance of Wade’s counsel at the penalty phase was ineffective and cannot survive review under Strickland v. Washington, 466 U.S. 668 (1984). Contrary to Judge Canby’s allegation, the record shows that Wade’s counsel did introduce substantial evidence of Wade’s abuse as a child prior to and during the penalty phase. Moreover, I do not believe that summoning “Othello” was necessarily a mistake or that it backfired. Finally, the record does not support Judge Canby’s conclusion that counsel “gave up any effort to persuade the jury to impose a sentence other than death.”
I
Judge Canby is certainly correct when he states that if the statutory language defining an aggravating circumstance is “too vague to provide any guidance to the sentencer,” Walton v. Arizona, 497 U.S. 689, 654 (1990), that aggravating circumstance may fail to pass muster under the Eighth Amendment as interpreted by the Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976). The next step, however, is to determine “whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient,” i.e., whether they provide some guidance to the sentencer. Walton, 497 U.S. at 654. If the answer to this inquiry is “yes,” then the circumstance itself is valid, and the only remaining question is whether a defendant sentenced to death was accorded the benefit of the judicially clarified construction. Id. at 653; see also Godfrey v. Georgia, 446 U.S. 420 (1980).
The State essentially does not contest the claim that the statutory language of the torture-murder special circumstance, if read in isolation, might raise a vagueness issue under the first part of the test. The California Supreme Court evidenced such a concern in People v. Davenport, 710 P.2d 861, 875 (Cal.1985), observing that the language in question might be insufficiently narrow under Godfrey unless it was understood to require an intent to torture. Relying on the established legal definition of torture under California law, however, the California Supreme Court held that the language of the special circumstance did include such a requirement of intent. The court said:
[T]he torturous intent of the perpetrator is of such well-established significance that we cannot believe the legislative body in this instance intended to remove the requirement [of intent] from the special circumstance. The very use of the term torture to describe the class of murders to which the subdivision applies necessarily imports into the statute a requirement that the perpetrator have the sadistic intent to cause the victim to suffer pain in addition to the pain of death, which intent is distinct from the intent to cause the victim’s death.
Id.
Thus, the pivotal question in this case is whether the jury understood that intent to torture was an essential element of the torture-murder special circumstance. Based on the record, I am convinced that the jury could not have understood otherwise. Essentially, I agree with the California Supreme Court’s analysis of this issue. Joined by five of his colleagues, Chief Justice Lucas said:
Defendant contends that, given the Davenport holding, the torture-murder special-circumstance finding in this case must be reversed because the special circumstance *1338instruction failed to inform the jury that the specific intent to torture was an element of the special circumstance. (See, e.g., People v. Leach (1985) 41 Cal.3d 92, 110, 221 Cal.Rptr. 826, 710 P.2d 893.) Although the special circumstance instruction, viewed in isolation, did not, by its express terms, explain that the “infliction of torture” element of the special circumstance included an intent-to-inflict-cruel-pain requirement, we believe that in light of the accompanying torture-murder instructions and the argument of counsel on this point there is no reasonable likelihood that the jury was misled on this issue.
In instructing the jury at the guilt/special circumstance phase, the court gave instructions on both torture-murder and on the torture-murder special circumstance. In defining torture-murder, the court made clear that “[a] necessary mental state in murder by torture is the specific intent to cause cruel pain and suffering....” Although in some cases there may be reason to doubt that the jury understood that the “infliction of torture” element in the torture-murder special circumstance embodies the same intent-to-cause-cruel-pain element as in torture-murder, nothing in the present record suggests the jury in this case was likely to have drawn any such distinction in the use of the term “torture” in the two instructions. Indeed, the prosecutor in closing argument specifically explained to the jury that the torture-murder special circumstance required essentially the same showing as torture-murder itself, plus the single additional element of an intent to kill. And neither the prosecutor nor defense counsel suggested at any point that a torture-murder special circumstance could be established without first proving an intent to torture. Under these circumstances, we are confident that the jury understood the basic elements of the torture-murder special circumstance, and that the special circumstance finding was not based on a mere accidental or unintentional infliction of cruel pain.
People v. Wade, 750 P.2d 794, 805 (Cal.) (footnotes omitted), cert. denied, 488 U.S. 900 (1988).
I do not believe it at all likely — indeed it is most unlikely — that a rational jury could believe it had to find intent to torture for first-degree murder, but that somehow the intent element dropped out when the issue escalated into whether a special circumstance warranting the death penalty existed. This assessment seems especially true given the ordinary meaning of the word “torture” which unmistakably embodies the idea that the act is done with intent. The dictionary defines torture as “the infliction of intense pain ... to punish or coerce someone: torment or agony induced to penalize religious or political dissent or nonconformity, to extort a confession or a money contribution, or to give a sadistic pleasure to the torturer.” Webster’s Third New International Dictionary 2414 (1976). All the verbs in this definition are inconsistent with the idea that torture could be either accidental or unintentional.
II
Judge Canby concludes also that Wade’s counsel’s performance at the penalty phase fell below the Strickland standard of effective representation. I do not. Judge Canby relies on three alleged tactical defects by Wade’s counsel: (1) failing to present at the penalty phase “any significant evidence” of Wade’s abuse as a child; (2) calling Wade to the stand and summoning Othello whose “testimony can only have been damaging to Wade”; (3) allegedly arguing to the jury that “executing Wade would be an outcome favorable to Wade.” I will address each in turn.
A
First, Wade’s attorney did present mitigating child abuse evidence during the penalty phase. He called Wade to the witness stand and asked him if the extensive evidence of child abuse admitted during the guilt/special circumstances phase was true:
Q Melvin, you’ve told the doctors about your childhood when a person by the name of Jack abused you sexually and physically. Was that true?
A Yes, it was true.
Q You didn’t make it up?
*1339A No.
RT at 6307 (emphasis added).3 In my view, this transported into the penalty phase as “true” the lengthy testimony of child abuse offered during the guilt phase by way of the testimony of doctors and a videotaped interview of Wade conducted by his psychiatrist, Dr. Allison, and his attorney.
Judge Canby’s conclusion on this issue is startling. The only restriction placed on the detailed child abuse testimony at the guilt phase was that it would not be considered for its truth. By asking Wade at the penalty phase whether the child abuse testimony was true, and by soliciting Wade’s answer that it was true, Wade’s counsel severed this restriction. Thus, the restriction on the jury’s use of the testimony at the guilt phase was erased and is immaterial. This conclusion is particularly inescapable in view of the trial judge’s penalty phase instruction on the use of evidence: “In determining which penalty is to be imposed on the defendant, you shall consider all the evidence which has been received during any part of the trial of this case.” Id. at 6449-50 (emphasis added).
It makes sense not to go through the same testimony twice for the same jurors. It would elevate form over substance to require Wade to repeat in the penalty phase everything the jury had already heard earlier, including Wade’s videotaped testimony on the subject. Dr. Rath’s testimony on this issue was particularly lengthy and detailed. Here from the evidentiary hearing in district court is counsel’s explanation of his tactics, an explanation that I cannot conclude is unprofessional:
Q At that time [prior to actual start of the trial] were you also considering what to present at the penalty phase?
A Yes....
I agonized over the presentation of evidence in this case from the very beginning to the very end as to what I could do as an attorney to save my awn boy’s life. It was on the line, and I knew it, and I agonized over it every second of it, whether I was in the courtroom or out of the courtroom.
Q Was it your desire to present psychiatric testimony at the penalty phase?
A Well, I recall I didn’t, for this reason: That we had presented all of the psychiatric and psychological testimony in [the] guilt phase.
Now as a Monday Morning Quarterback, you might say, well, he [shouldn’t] have done that, and you should have held back some expert, or whatever, to go to the penalty phase.
But the jury heard it in whatever phase you want to describe. The jury heard this evidence from the experts as to Melvin Wade’s mental illness. And then they heard again from Dr. Olliver, and Dr. Hag-gar who were on the Medical Commission appointed by the Court.
Q And with regard to what was presented to the jury in terms of his mental illness, had the — at the guilt phase, isn’t it correct that you presented those historical facts as they bore upon his multiple personality affliction, if you will?
A I believe I did that.
Q And did you consider in the presentation of the multiple personality defense at the guilt phase, whether it would be advisable [to retain] one of these experts for an alternative mitigation presentation at the penalty phase?
A I considered it, but I just wanted the jury to know in a case like this with such hideous facts, I wanted the jury to know very, very early that what the motivation was behind Melvin Wade, and I didn’t want to wait for one phase after another phase after another phase; I wanted that jury to know what Melvin Wade was like immediately, could go into history to put his case on.
It was my view that the jury, if they could, would have lynched Melvin Wade and me right on the spot, and I wanted to mitigate that feeling, those high feelings *1340that were running rampant in San Bernar-dino County.
I’d walk out in the street and people would, if they knew I was his lawyer, they’d hate me for no other reason. I wanted them to know that Melvin Wade was a human being, that he was a sick human being, and I didn’t want to wait until the end of the case to present that, so that the jury would cement and harden their position very early as they heard Mr. Christie put on all of the evidence in this ease.
Q Did you consider presenting evidence of Mr. Wade’s abused childhood as mitigation of the penalty?
A No, because it was already before the jury.
Q Why, in order to put it before the jury, did you consult with an expert to see how that material might, apart from its role in his multiple personality defense, how that would — might affect his conduct towards his — so as to constitute mitigation of the penalty?
A If I understand your question: Did I present that child abuse as a separate and distinct defense apart from the relationship it had to dissociative disorder?
The- answer to that question is, I did not, because I felt that was before the jury, and it was — had been embraced in the relationship to the dissociative disorder multiple personality type, based upon all the information I had, based upon prior defendant with that same child abuse which then gives rise to a multiple personality.
I knew all of these things, and I presented them to the jury within the concept of the dissociative disorder, not as a separate defense apart from that.
5/22/90 EH- at 124-26, 128-29, 138-39 (emphasis added).
Judge Canby fails to appreciate how the testimony from one phase in a capital case in California is incorporated into each following phase. Section 190.4 of the California Penal Code controls and explains how this works:
(c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied unless for good cause shown the court discharges that jury in which case a new jury shall be drawn_
(d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.
To designate Wade’s testimony at the penalty phase on this issue as “brief’ betrays a misunderstanding of this process.
It is clear from the record that Wade’s counsel devised a skillful method of presenting the predicate for Wade’s dissociative disorder defense to the jury during the guilt phase without subjecting either Wade or his mother and sister to cross-examination. This can hardly be said to constitute ineffective representation. In fact, it was quite intelligent. A tactic that enables a defense attorney to present a favorable mental state defense to a jury through the testimony of expert witnesses and that permits the defendant to be seen and heard by the jury on this issue without being cross-examined is highly skillful and professional. This tactic is the mark of experience and know-how, not incompetence, and it supports the state court trial judge’s views given in the evidentiary hearing that Wade’s counsel at the time of the trial was one of the “top ten defense attorneys” in the county, and one of only five allowed to handle capital cases. 5/23/90 EH at 114. The trial judge testified also that his opinion of counsel’s ability actually “went up” as a result of counsel’s performance in Wade’s case. Id. at 115. Here is what Judge Kayashima had to say about counsel’s use of videotaped testimony: “I thought it was very clever, clever in the sense that he was able to put on his case, his defense *1341without subjecting his client to cross-examination in the guilt phase.” Id. at 117.4
The record shows without doubt that the possible sources of corroboration of the child abuse testimony — -Wade’s mother and sister — could have well been more favorable to the prosecution than to the defense. Wade’s counsel describes Wade’s mother as either denying the allegations of child abuse, avoiding responsibility, or protecting the abuser “Jack”. 5/22/90 EH at 132-83. In fact, counsel’s recollection was that Wade’s mother “was supporting Jack, her boyfriend.” Id. at 133.
Wade’s sister, who was in federal prison when she signed a declaration for this case in 1991, was no better, and could well have been used by the prosecutor to impeach Wade’s allegations of multiple personalities. Her declaration contains corroborating evidence of Wade’s child abuse, but no hint of “Othello.”
As I read the record, these are obvious reasons why any experienced trial attorney might decide not to call Wade’s mother or sister to the stand, and why instead he would choose to rely on Wade’s and his doctors’ testimony. Calling mothers and sisters to the stand under these circumstances can quickly backfire as the mother/sister of the person abused covers herself and creates distance from blame. Moreover, a standard prosecutor’s tactic on cross-examination of a family witness is to seize on the opportunity to build the prosecutor’s case in a way that cannot be done effectively by calling such a hostile witness as part of the State’s case, especially where a mental defense is involved. “Favorable” family witnesses are universally regarded by prosecutors as “sitting ducks” on cross-examination.
It is axiomatic among trial lawyers that “less can be more.” We do not know what would have happened if Wade’s mother and sister had been called to the stand, but based on what we do know, I agree with Judge Canby that counsel’s decision not to call them as witnesses was not Strickland error.
B
Using the power of hindsight, Judge Can-by finds fault with counsel’s attempt (by asking “Othello” to testify) to demonstrate to the jury the dissociative disorder on which he was relying to save Wade’s life. I disagree. Of course “Othello” was profane and insulting and wild, but this is exactly what counsel had to demonstrate in order to prove the existence of a mitigating circumstance at the penalty phase, ie., the existence of a mental disorder that would justify life instead of death. The evidence of a mental disorder might not have worked at the guilt or the sanity phases, but it assumes a much different role at the penalty phase. Prior to that phase, Wade’s mental disorder was relevant to attack the mental state required for guilt. Later, it became relevant to the issue of insanity which if proved would relieve Wade of responsibility. But at the penalty phase, the substance of the defense for the first time became relevant to a new issue: the penalty to be chosen by the jury. Section 190.3 of the California Penal Code demonstrates how this works:
If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, ... the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without possibility of parole....
In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of *1342mental disease or defect, or the effects of intoxication.
After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances.
The record conclusively establishes that counsel was properly oriented and knew exactly what he was doing during the penalty phase. After “Othello” testified, Wade’s counsel argued: “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.” RT at 6467. He then explained that he summoned Wade’s perverse personality so the jury could see “what I had seen over the months, what the doctors had seen in the flesh over the months.” Id. at 6468. Counsel then told the jurors that the credibility of the mitigating evidence, which was under continuing attack by the prosecution, was theirs to determine “to the extent that you don’t kill Melvin Meffery Wade.” Id. at 6468-69.5
Mitigating evidence is relevant for another purpose. Section 190.4(e) of the California Penal Code requires a judge in a case in which a jury has returned a verdict imposing the death penalty to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances ... and ... make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.”
With this context in mind, I conclude it is impossible to find fault with counsel’s decision to prove Wade’s mental disorder by demonstrating the disorder to the jury and the trial judge and letting them see it firsthand. This is particularly true in view of the prosecutor’s relentless claim that the mental disorder was a fabrication, and of the special relevance of the disorder as a mitigating circumstance. Wade’s mental disorder was the most promising circumstance to save his life. His attorney believed in it and so did his doctors. Judge Canby, who was not in the courtroom, can only see the testimony of “Othello” as insulting. Counsel saw it for what it was: the best way to save his client. It is nothing short of amazing that Judge Canby finds fault with counsel’s direct proof of a recognized mitigating circumstance in the penalty phase of a death penalty ease. In fact, the worse the disorder, the more weight it possibly could have as a mitigating circumstance. What was counsel supposed to do? Ask “Othello” to be polite? Ask Wade to tone it down? Wave a wand at the homicidal disorder and make it less profane and more palatable to the jury?
Judge Canby seems surprised that counsel asked “Othello” if he killed Joyce Tolliver, overlooking the fact that the jury had already convicted Wade and found the existence of special circumstances. Thus, Judge Canby unnecessarily expresses concern about testimony that hardly came as a surprise to the jury.
Presenting evidence of a dissociative disorder is a difficult challenge for a trial lawyer, especially when the prosecutor labels it a farce. Must you limit yourself to the techni*1343cal testimony of doctors? Or, can you do what all trial lawyers try to do when a jury is present, make it real, make it live, give it emotional impact. Wade’s counsel wrestled with this problem and discussed it in the guilt phase with the jurors he was trying to convince:
The problem here is the nature of the disorder, the nature of the mental disease. If Melvin Wade or any defendant in a criminal case sat before you and was obviously deranged, where we didn’t need to call on qualified, reputable physicians or psychologists to make that determination for us, if you could just look at him and say he’s crazy as a bed bug, the defense would not, in my opinion at least, would not offend you. The fact is you’d say to yourself it was a senseless crime, the killing of this ten-year-old girl. It made no sense. No matter how the District Attorney wants to make some sense of it, it makes no sense whatsoever. No matter how he twists and turns it, it makes sense to an insane person only.
And if he had exhibited that kind of a derangement in front of you for all of us to see, with all of the classic symptoms, I don’t believe that the defense of insanity would offend you....
So then what do you do? How, how do you get the image of that dissociative disease before a jury who has to make the ultimate determination of whether it is in fact true or not?
RT at 6188, 6195. Operating from his judgment that his best opportunity to save his client’s life would come in the penalty phase, counsel waited to call Wade until it was literally do or die.
Judge Canby admits that Wade’s mental disorder was Wade’s best defense: “The facts of the case lend more support to the position that Wade did not form the requisite intent because he suffered from multiple personality disorder.” How Judge Canby can say this and then use hindsight to criticize counsel for attempting to prove his defense by way of prima facie evidence, good and sufficient on its face, is most extraordinary and wrong.
Judge Canby’s analysis and his conclusion in this respect suggest he has failed to heed important aspects of the Strickland test. In particular, his approach seems manifestly at odds with these admonitions from the Court:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (citation omitted) (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Judge Canby’s opinion is pregnant with irony: the law permits mental diseases and disorders to be used in court to mitigate conduct and to moderate sentences, but if a lawyer proves the disease or disorder too directly by putting his client on the stand to demonstrate it to the jury, we brand the lawyer as incompetent and the tactic as unprofessional. From my vantage point, it would probably be reversible error of constitutional dimension for a trial judge to deny counsel the requested opportunity to summon ‘‘Othello” for the jury to see and to hear, especially when the prosecutor is claiming the mitigating circumstance is a phony. Judge Canby’s claim that because “Othello’s” testimony was “repellent,” Wade was left with “no mitigating evidence at all” is no less than an unqualified repudiation of California’s legislative determination that mental *1344disorder can be a mitigating circumstance. California’s statute does not distinguish between benign and malignant disorders. In fact, the law requires that the disorder be “extreme.”
Yes, the evidence of Wade’s mental disorder did not prevail. This ultimate failure, however, does not render incompetent counsel’s decision to use it. Trial lawyers don’t get to pick their evidence or their defenses from a free-standing menu. The facts are what they are, the defendant is who he is, and lawyers have an ethical responsibility not to fabricate a defense.
C
I come finally to Judge Canby’s claim that Wade’s counsel “gave up any effort to persuade the jury to impose a sentence other than death” and argued that “executing Wade would be an outcome favorable to Wade.” This claim is wrong. It completely misreads and thoroughly misrepresents counsel’s argument. The selective snippet of counsel’s argument quoted by Judge Canby is taken out of context, and it does not do justice to the theme of counsel’s penalty phase argument — that Wade was a victim of a horror beyond his own control and was inhabited by an uncontrollable beast within created by terrible abuse he had suffered as a child.
Counsel solidly established this theme in his argument to the jury during the guilt phase.
The reason insanity is important at this phase of the trial is because if the defendant in a criminal ease cannot, because of a mental disease or mental defect, cannot conform his conduct to the standards of law because of that mental disease or mental defect, he is not guilty by reason of insanity. That’s true.
But more important, he doesn’t have the capacity to form the necessary intent, the mental state, before a conviction can be obtained by the District Attorney.
There must be a concurrence of act and specific intent for these crimes. Even the crime of murder by torture, a specific intent is required.
And that specific intent is to inflict the pain.
Before I talk about the specific defense in this case, the District Attorney has accused the defense of a theatrical defense. Says it’s showy. He says it’s sensational. And he says it’s no defense to this crime.
I disagree with him on all of those statements.
I think you would agree with me that if Melvin Wade suffers from a dissociative disorder of the kind that has been described to you, and I think you would agree with the doctors, if he so suffers from that, he is in fact insane as defined by the American Law Institute.
Well, who has he convinced that he is insane? This very clever, this very intellectual, this very intelligent, this genius who has been seated to my right at the counsel table throughout this entire trial. Who has he convinced besides asking the question of you 12 people? Well, he convinced Dr. Chapman with 40 years of psychiatry, college education, medical doctor. He convinced Dr. Rath, a bright young psychologist. He convinced Dr. Summer-our, not to the degree that he convinced others. You recall Dr. Summerour said that he believes that he had a multiple personality but it was not with a high degree of certainty was his opinion.
He convinced Dr. Allison, not that he had a multiple personality, but that he suffered from a dissociative disorder. All of the doctors who this genius has convinced all agree that he suffers from a dissociative disorder, whatever label you put on it, whether you put on it possession syndrome, the possession syndrome, or multiple personality. And it’s not “the devil made me do it, ” as Mr. Christy says. If he wants to talk about it, it’s the devil did it, not the devil made me do it. That’s what the defense is. It’s the demon did it, because the demon didn’t make Melvin Wade do anything, because he was not there. He was unconscious at the time.
*1345Who else did he convince? His lawyer. One who had seen almost every defense in the book, who has represented all kinds of people, all sizes, all colors, and all ages.
And you know, you wonder did we have a healthy person before all this came about? April 10th and 11th of last year. Notwithstanding the psychologists or psychiatrists he saw with respect to the Workmen’s Compensation claim, what about all the psychiatrists that were seen prior to that time even though there was no mention of a dissociative disorder. Is it normal for a young boy twelve, thirteen, fourteen, fifteen years old, is it normal to have three different suicide attempts?
Even if you assume it was Melvin Wade who was the person who was trying to kill himself as opposed to some other personality within that body.
All of the psychiatrists, the trips to Martin Luther King. He was sick then and he’s sick now.
The defense frightens the District Attorney’s Office. Probably frightens all of us when you think of what can happen to a person who suffers from that kind of a mental disease if in fact that be so.
I don’t believe that we can be concerned or should be concerned with extracting our pound of flesh, quart of blood from Melvin Meffery Wade without very careful deliberation with respect to the mental state that he was under on April 10th and 11th. To do anything less would show the irresponsibility that that body showed to Joyce Tol[l]iver on April 10th and 11th.
RT at 6182, 6190-91, 6196-97 (emphasis added).
With this argument in mind, with Wade claiming no memory of the events surrounding the killing, and considering all the evidence including three suicide attempts by Wade, counsel’s argument takes on a different meaning than the meaning attributed to it by Judge Canby. Counsel never argued that executing Wade would be a favorable outcome. Counsel was resolutely pursuing his “the demon did it” theme, and the idea that Wade deserved sympathy and compassion, not death.
To demonstrate counsel’s effort to convince the jury to spare the life of a man who tortured a child to death, I need only array counsel’s own words:
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 Mef-fery 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 of Melvin Meffery *1346Wade 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 Tol[l]iver. 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 case 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.
Id. at 6469-72.
Judge Canby’s claim that “there is simply no tactical reason to argue to the jury that executing Wade would be an outcome favorable to Wade” is wrong on the two counts. Not only did counsel not say that executing Wade would be a favorable outcome, but counsel did have a good reason to say what he did, as recognized by Chief Justice Lucas in his opinion for the California Supreme Court in People v. Wade: “[W]e believe counsel’s argument was a reasonable and tactical one, aimed at gaining the jury’s sympathy for defendant, and was not tantamount to advocating his client’s death.” 750 P.2d at 807. Counsel was not advocating the execution of Wade. He was trying to convince the jury that a life sentence without possibility of parole would be sufficient punishment given Wade’s mental condition.6 To suggest that counsel essentially abandoned the life of his client to the death penalty is a claim that finds no support in the record.
I suppose Judge Canby would also find fault with Clarence Barrow’s defense in the Leopold and Loeb case. Nathan Leopold, Jr. and Richard Loeb were wealthy, young men who, “for the sake of a thrill,” sought to *1347commit the “perfect crime.” See Attorney for the Damned 16-19 (Arthur Weinberg ed., 1957). They kidnapped and later murdered a fourteen-year-old boy. In the face of enor-mous public outcry against the defendants, Clarence Darrow took their case. Leopold and Loeb pled guilty to the murder, but the prosecutor still demanded the death penalty. During the course of his eloquent and impassioned plea before the judge, Darrow said:
I do not know how much salvage there is in these two boys. I hate to say it in their presence, but what is there to look forward to? I do not know but that Your Honor would be merciful if you tied a rope around their necks and let them die; merciful to them, but not merciful to civilization, and not merciful to those who would be left behind.
Id. at 84. When Darrow finished his argument, tears streamed down the judge’s face, and Leopold and Loeb received life imprisonment, not death.
No one would claim Clarence Darrow argued that the execution of Leopold and Loeb would be a favorable outcome. Darrow was obviously pleading for sympathy, and his statement must be understood in the context of his more-than-twelve-hour plea. But Judge Canby does not give Wade’s counsel any such license. Judge Canby isolates a passage out of context, then obscures its clear meaning. While Wade’s counsel may not have been Clarence Darrow, his performance was not constitutionally infirm.7
D
Looking at the record as a whole, I am convinced that Wade’s destiny was to be convicted and sentenced to death as soon as the police arrived on the scene of his stepdaughter’s brutal murder and Wade (not “Othello”) said to them with his hands in the air, “Here I am. I’m the one you want. I guess I hit her too hard. I guess I hit her too hard.”
Wade’s counsel took over Wade’s defense after the preliminary hearing when Wade’s first attorney bailed out. Wade’s first attorney told his new counsel that “the case was an absolute loser, and the facts were heinous, and ... he couldn’t imagine any jury that wouldn’t convict him.” 5/22/90 EH at 35. Nevertheless, Wade’s new counsel hired a battery of experienced investigators and had Wade examined by numerous experienced doctors, none of whom could find evidence of a mental defense before Wade’s trial. With this in mind and after reviewing the record, I conclude that saving Wade from the death penalty would have been a feat that would have quickly found its way into the annals of incredible courtroom victories for the defense. Wade’s counsel did the best he could with the little he had.8 In legal terms, noth*1348ing Wade’s counsel did or did not do prejudiced Wade’s case: it was open and shut from the click of the handcuffs. The result of this trial was both just and reliable as required by Strickland. Even if counsel had chosen the tactics Judge Canby prefers, I am convinced, based on the record, that the outcome would not have changed.
Ill
As soon as a person is sentenced to death, no effort is spared on his behalf to reverse his fate. Every possible motion, appeal, and petition is pursued many times over; every conceivable argument is made; and everything within legal reach is attacked with relentless fervor. All of this is well and good. It is the adversary system as it must work, and we judges should be able to sort the wheat from the chaff. This is our job.
But there is a particular aspect of this energy that should concern everyone charged with ensuring an adequate defense for those facing capital punishment. The worrisome aspect is this: trial counsel for convicted capital defendants find themselves automatically on the list of those who will be assailed for alleged deficiencies whether they deserve it or not. I do not suggest that lawyers should protect each other from Strickland claims. Hardly. And I do not suggest that trial counsel never fall below the Strickland standard. But I do believe we should examine ineffective assistance claims with great care and professional understanding. We must ensure not only that the rights of a defendant have been vindicated, but also that the lawyers who accept these sometimes thankless tasks are not rewarded with abuse. If we carelessly accept such claims when they are not grounded in the record and the standards of the profession, if we unnecessarily rake a lawyer over the coals in a superfluous concurring opinion, we may only succeed in making it unduly difficult to recruit adequate numbers of competent lawyers for the daunting task of representing the unwept. Regrettably, there is little public honor in representing child killers and others facing the death penalty. Justice O’Connor was keenly aware of this problem when she cautioned in Strickland against second-guessing after a conviction or an adverse sentence:
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair *1349the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.
466 U.S. at 690.
We have done a disservice to an attorney who accepted a distasteful case after another attorney had retreated for cover. The difficulty of defending this ease was compounded by his client’s inability to remember any of the facts surrounding the killing. Instead of being baffled by this problem, counsel skillfully converted it into a defense of unconsciousness caused by a dissociative disorder which he presented vigorously to the jury. The evidence of this defense served a different purpose at each stage of the proceedings. In the guilt phase, its purpose was to disprove the intent required for the crime charged. In the sanity phase, its purpose was to relieve Wade from legal responsibility for his acts; and in the penalty phase, its purpose was to create a mitigating circumstance that might save his life. Using the Strickland standard, which tells us that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” id. (emphasis added), I cannot identify any serious error in counsel’s approach to this case. Judge Canby’s analysis violates this rule.
Wade’s counsel represented his client with dedication, energy, and competence. Before he entered private practice, he served his county as a public defender for six years. We serve no principal or appropriate purpose in claiming without adequate grounds that his work was constitutionally deficient. We only add a new character to this tragic tale. At the evidentiary hearing in federal court, Wade’s counsel said:
I agonized over the presentation of evidence in this case from the very beginning to the very end and as to what I could do as an attorney to save my own boy’s life.... I agonized over it every second of it, whether I was in the courtroom or out of the courtroom.
5/22/90 EH at 129. A skilled professional did what he could with this impossible ease. Today, we reward him with a slap in the face because he wasn’t Clarence Darrow.
. William Shakespeare, The Tragedy of Othello, the Moor of Venice act 5, sc. 2.
. id.
. “RT” refers to the reporter's transcript of the state trial. “EH” refers to the evidentiary hearing in federal district court.
. From a cold record, it is a challenge to assess the performance of a trial attorney. Because Judge Kayashima was there, and Judge Reinhardt was not, it does not surprise me that they have different opinions of counsel's performance.
. Counsel’s explanation to the jury of “Othello’s” testimony was as follows:
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 Mef-fery 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 case. 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.
Id. at 6468.
. Shakespeare expresses a similar sentiment when Othello, after killing Desdemona in a jealous rage, says to lago, “I’d have thee live; For in my sense, ‘tis happiness to die.” Shakespeare, supra, act 5, sc. 2.
. Judge Canby and Judge Reinhardt also take umbrage at counsel's argument that Wade should be studied, not executed, i.e., the “human guinea pig" argument. This argument is commonly made in death penalty cases in California. Counsel frequently argue that a defendant should be kept alive so he can be studied. The purpose of such study, as the plea goes, is to enable behavioral experts to learn something useful about preventing or curing mental disorders. Counsel’s use of this argument is not a sign that he was insensitive towards his client.
. Judge Canby and Judge Reinhardt create the false impression that counsel was neither diligent in his preparation nor loyal to his client. They ignore counsel's unrebutted description of his reaction to discovering the possibility of a dissociative-disorder defense, a discovery made after the jury was selected:
At that time, sir, when I became convinced that a dissociative disorder was in this case, was viable and an honest defense, it was then that I went to the Court and said, if you like, Your Honor, for whatever reason, I made a mistake, if you like that, and that I told the Court that I believe it would be ineffective representation of Melvin not to get the benefit of exploring this defense with forensic psychologists and psychiatrists who could, once they examined him on that issue, could go to the jury and testify in that regard.
The other reason for my request for mistrial was because I had not voir dired on the subject of insanity or dissociative disorder. And I knew that now it would be imperative that I voir dire on those areas.
And that’s the reason that I then went to the Court, moving then for a mistrial.
The People objected. We — I don't know if it’s all on the record or not, but I did not want to continue the case.
But when the judge ordered me to continue and gave me. two weeks, I wasn’t going to abandon my client. I — when the judge told me that I had to go forward, I did the best I could in the period of time that the Court gave me.
*1348I could have walked away and said, "Well, I — I'm not goi[ng] to lay my reputation or my — any part of me on the line here because you are not giving me enough time.” That would have been abandoning my client, and I didn’t do that. I worked day and night, all— almost to midnight, one o'clock, two o'clock in the morning in that two-week period going out to the jail, talking to Melvin Wade with Dr. Rath.
It was a nightly occurrence that we were out there after whatever we had done in court, and we would meet and — and we'd stay at the jail until they kicked us out. And then we'd go over to a — to a place called Coffee Dan’s restaurant that was a — that stayed open late at night. And we would discuss the case, Rath and I — Dr. Rath and I.
Is Melvin lying to us? Is this legitimate? We were trying to do all kinds of — lay all kinds of traps for him, to determine whether he was putting us on, or this was a valid defense.
We concluded that it was not — he was not putting us on, that it was a valid defense.
So, if I went to the jury too soon, so be it. I would have liked to have gone to the jury later and discussed this with the jury in voir dire. And that’s what I indicated to the trial judge, and he refused that, sir.
Q So that, you feel like even though you had consented to the trial setting, that perhaps you had begun the mistake that you indicated a moment ago, that you had begun the jury selection too soon?
A I [became] aware of that after the fact, after I had received the reports, oral or written, and mostly oral from my forensic experts. It was then that I realized I didn't have any of this information, and the — as I reflect on it, it doesn’t appear to me that there was any way for me to get the information except that it broke as it did break.
5/22/90 EH at 121-23.