dissenting:
I respectfully dissent from the majority opinion. Alfred R. Dyer is entitled to a new trial. Despite revulsion at the hideous and senseless killings that took place in this case, we cannot abdicate our duty to examine the petitioner’s trial dispassionately to determine whether he received a fair trial. The judgment we render has ramifications beyond the fate of one individual. It affects how justice will be rendered in California and the Ninth Circuit and possibly more broadly.
Because serious defects in his trial deprived Dyer of the fair trial guaranteed him by the United States Constitution, I respectfully but vigorously dissent from the majority’s decision to affirm the district court’s denial of Dyer’s petition for a writ of habeas corpus.
I. THE BIASED JUROR
Trial by fair and impartial fact finders is the heart of what we claim justice in America is all about. “In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). “If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his *952Sixth Amendment right to an impartial panel.” United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). “The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law.” United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 179, 81 L.Ed. 78 (1936). “Doubts regarding juror bias must be resolved against the juror.” Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir.1991).
The presence of Jessica Freeland on Dyer’s jury deprived Dyer of his constitutional right to trial by an unbiased jury. We should hold that both actual and presumed bias are present in her case. Freeland lied to the court during voir dire on numerous critical matters that if answered correctly would have been the basis of challenge for cause. Her blatant lies demonstrate her actual bias and the truth of the matters she lied about are proof of both actual and presumed bias. I can imagine no more patently obvious example of why Freeland would have both presumed and actual bias than the fact that her brother was the victim of a homicide remarkably similar to the homicides for which Dyer stood trial.
A. ACTUAL BIAS: FREELAND’S DISHONESTY AT VOIR DIRE
The Supreme Court has explained that to obtain a new trial on the basis of a juror’s actual bias, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984)(plurality opinion).1 See, e.g., Burton, 948 F.2d at 1159 (juror failed to disclose that husband beat her); United States v. Colombo, 869 F.2d 149, 152 (2d Cir.1989) (juror failed to disclose that brother-in-law was government attorney); United States v. Scott, 854 F.2d 697, 699 (5th Cir.1988) (juror failed to disclose that brother was deputy sheriff); United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir.1984) (juror failed to disclose knowledge of defendant and involvement in other lawsuits); United States v. Bynum, 634 F.2d 768, 771 (4th Cir.1980) (juror failed to disclose that brother was convicted felon).
On federal habeas review of a state conviction, “a determination after a hearing on the merits of a factual issue, made by a State court ... shall be presumed to be correct. ...” 28 U.S.C. § 2254(d) (1992).2 “[A] trial judge’s finding that a particular venireman was not biased and therefore was properly seated [is] a finding of fact subject to § 2254(d).” Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854, 83 L.Ed.2d 841 (1985) (citation omitted); Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984). Here, the trial court found that Freeland answered the voir dire questions honestly, and the California Supreme Court held that this decision was not an abuse of discretion. People v. Dyer, 45 Cal.3d 26, 246 Cal.Rptr. 209, 227, 753 P.2d 1, *95319, cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 347 (1988). However, the presumptive correctness of state court factual findings is inapplicable where, as here, “material facts were not adequately developed at the State court hearing,” 28 U.S.C. § 2254(d)(3), or, also as here, “such factual determination is not fairly supported by the record.” Id. § 2254(d)(8).
The trial judge conducted the voir dire at Dyer’s trial in June 1983. The judge asked every prospective juror inter alia the following questions:
13. Have you or any of your relatives or close friends ever been the victim of any type of crime?
15. Have you or any of your relatives or close friends ever been accused of any offense other than traffic cases?
(emphasis added).3 Jessica Freeland answered “no” to both questions. However, Freeland was fully aware at the time she answered to the court that she and several of her relatives had been the victims of violent crimes, and that several of her relatives had been accused of violent crimes.
The Killing of Freeland’s Brother
Let us look first at the evidence concerning Jessica’s brother. In October 1977, Edward Sheppard killed Jessica Freeland’s brother, Richard, by shooting him in the back of the head. Abrasions on Richard Freeland’s head evidenced pistol-whipping.
While Jessica Freeland claims that she answered “no” because she believed Richard’s death was the result of an accident, this explanation is patently implausible. The State of California charged Sheppard with murder, and Sheppard plead guilty to voluntary manslaughter. Rosetta Freeland, the mother of Jessica and Richard, testified at Sheppard’s preliminary hearing, and Sheppard paid over $1,800 in criminal restitution to the Freeland family for funeral expenses. Jessica Freeland was a named plaintiff in a wrongful death action filed against Sheppard, in which the Freeland family won $15,000. Jessica Freeland admitted that she and Riehard had been “very close,” Deposition of Jessica Freeland, August 18, 1993, at 32, and that the period after Richard’s slaying was “a painful time in our lives.” Id. at 53. Charles Freeland, the father of Jessica and Richard, testified that Jessica and Richard were both living with their mother and were both young adults at the time, and that Jessica and Richard were “close.” Transcript, Evidentiary Hearing at 8-17. He also testified that he believed the killing was not an accident, that he did not remember anyone else in the family saying that the killing was an accident, and that Jessica was angry with him when he refused to share with her the proceeds of the wrongful death action against Sheppard. Id.
It defies common sense and is contrary to the overwhelming evidence to conclude that Jessica Freeland was telling the truth when she said no relative or close friend had been the victim of a crime. Jessica and Richard were close, they lived in the same house, they were both adults, and Richard’s death pained Jessica. The perpetrator was charged with and pled to intentional killing. Richard’s father believed the killing was intentional. To conclude that Jessica answered honestly, we must assume that in the wake of Richard’s death, Jessica never learned that: 1) Sheppard pistol-whipped Richard’s head, 2) Sheppard was charged with murder, 3) Sheppard pled guilty to voluntary manslaughter, 4) Sheppard paid $1,800 in criminal restitution to the Freeland family for funeral expenses, and 5) Jessica’s mother, with whom Jessica lived, testified against Sheppard during the criminal proceedings. We must also assume that although Jessica was angry at her father for keeping the $15,000 proceeds of the wrongful death action against Sheppard, she had no awareness of the facts surrounding her brother’s death.
Freeland and Family Members as Victims
I turn now to evidence that other family members, including Jessica Freeland herself, were victims of crimes. Jessica Freeland was assaulted at knife point by her twelve-year-old, mentally disturbed cousin Buddy. *954She was lying on a couch when Buddy approached her with a knife and pulled her underwear off. There was a struggle, and Buddy “scared the hell out of’ Freeland. Afterwards, Freeland’s father called the police. Freeland later described the incident as a “sexual assault” and recognized that she had been “attacked.” Freeland Deposition at 60, 65.
Freeland claims that she answered “no” during voir dire because the incident was “not anything that I think could be considered like a violent crime that had a major effect on me and I’m still reeling----” Id. at 129. However, the question was not whether Freeland was the victim of a violent crime that deeply affected her, but whether Free-land was the victim of “any type of crime.” Freeland herself described the incident as an “attack” and a “sexual assault.”
Freeland’s home was burglarized on “at least” three separate occasions. One incident that Freeland reported “really stands out in my mind” was when the burglars “took a lot of food and threw it on the floor and killed our fish and kind of trashed the house.” In another incident, “[o]ur back door was kicked in.” Each time, valuables were taken and the burglars were never caught. Id. at 53-54. Moreover, her cars were burglarized on so many different occasions that she could not keep the burglaries straight in her mind: “I think the red car was burglarized, but I can’t remember for sure. I’ve had too many burglaries.” Id. at 68.
When asked why she answered “no” on voir dire even though she knew that she had been the victim of multiple burglaries of her home and car, Freeland answered:
I didn’t have time to rack my brain to remember every time my car or house had been burglarized and it didn’t have a bearing on the case to me because if you live in Oakland, I don’t know of anyone who lives in Oakland who has never been burglarized. It’s just a way of life and it’s just the way things go. It was not a traumatic event that caused me to be so bitter that I would irrationally try to pay back someone like Alfred Dyer who has evidently done burglaries or robberies.
Id. at 124. Freeland lied to the court. Her attempt at minimalization of the burglaries and rationalizations do not erase the lies. The court, not the prospective juror, makes the determination of whether victimization by burglary is cause for striking a juror. Likewise, whether Freeland felt she had time to answer the court’s questions was not her decision to make. The fact that Freeland lived in Oakland rather than Pacific Heights does not change the fact that she was a victim of crimes. Indeed, at least four other potential jurors from Oakland reported burglaries against them to the court. Whether Freeland could be fair despite her victimization was not hers to decide.
Family Members as Criminals
I turn now to the evidence belying her response that no family members had been accused of crime. In 1970, Jason Caldwell, Freeland’s maternal uncle, was arrested and charged with murder. In 1978, Caldwell was charged with armed robbery. Caldwell lived with Freeland’s family on several occasions. Although Caldwell was acquitted of murder, the question was whether a relative had been accused of a crime. Freeland admitted that she was aware of the criminal charges. When asked why she didn’t disclose this information, Freeland answered: “Am I to reveal everything, the little information I know about other relatives? That’s ridiculous. If that’s what they wanted and you feel I have been unfair by not saying a distant relative has done something, then let Alfred Dyer get a new trial.” Id. at 134-35. An uncle who lived with the family from time to time is not a “distant relative.” He is “a relative” and close at that. The question pertained to “any of your relatives.”
On May 5, 1983, less than a month before voir dire, Melvin Provost, Freeland’s estranged husband, was arrested on rape charges. Provost was ultimately sentenced to six months imprisonment and another 30 months probation.
Explaining her “no” answer given at voir dire, Freeland stated:
When I found out Melvin was in trouble either the case was already over or we *955were already past voir dire____ And I never read anything that said, “Okay, now somebody in my family is arrested and now I’m supposed to tell everything.” Melvin is not a member of my family.
Id. at 10. It is difficult to believe that Free-land did not know about her husband’s arrest at the time of voir dire. Freeland stated at voir dire that her name was “really” Mrs. Provost and answered to that name, Trial Transcript, People v. Dyer, (No. 72540), at 780, she visited Provost within a week of the time she claims she heard about his arrest and she continued to give him money after they separated. Her claim that Provost was not a member of her family is equally specious. At the time of her voir dire questioning, Freeland had observed other prospective jurors claim as kin “ex-in-laws” and a brother-in-law. It is implausible that Freeland thought that the court would not consider her separated husband to be a member of her family.
When asked at a post-verdict deposition whether her father “ever had any problems with the law,” Freeland answered: “He kidnaped [sic] us one time and the police finally caught up with us and he was arrested.” Freeland Deposition at 64. This incident was part of a divorce dispute between Free-land’s parents. At her deposition, Freeland considered the incident to be a “problem with the law”; at voir dire, apparently she did not.
On May 27, 1983, just days before the voir dire, the state of California arrested and charged Freeland’s brother, Billy, with narcotics distribution. Billy Freeland had previously been charged with possession of brass knuckles, and with repeated juvenile offenses. When asked whether she knew of the drug distribution charges against Billy Freeland, Jessica Freeland did not answer directly. She stated that she “love[d]” and was “close to” her brother, but that “I can’t imagine a sister or brother knowing every possible act that the other was doing.” 4 Id. at 103.
This Court’s Standard of Review
For two reasons, we need not presume the correctness of the finding by the state trial judge that Freeland answered the voir dire questions honestly: first, “such factual determination is not fairly supported by the record,” 28 U.S.C. § 2254(d)(8); and second, “material facts were not adequately developed at the State court hearing.” 28 U.S.C. § 2254(d)(3). As to the first, considered both separately and together, the crimes against Freeland and her family, the crimes committed by her immediate relatives, and the evidence of Freeland’s knowledge of these crimes lead to the inescapable conclusion that Freeland lied to the court during voir dire. From Freeland’s own mouth is admission that she lied to avoid furnishing information: “I dislike giving information, period. Information that to me is not relevant.” Id. at 71.
The majority argues that the fact that Freeland is from “a crime-ridden community ... plausibly both affects her understanding of what qualifies as a crime and influenced her answers to Questions 13 and 15.” Majority Opinion at 937. I find this specious. Where Freeland lived cannot excuse her glib “no,” her failure to mention her family’s involvement, both as victims and perpetrators, in the crimes of homicide, rape, armed robbery, kidnapping, sexual assault, burglary, and drug dealing. The victims of such crimes suffer no less because they live in the city and not the suburbs, and the perpetrators are no less criminals. Imagine the reception in a money-laundering trial of the *956argument that the defendant had no idea that the burglary of an Oakland residence, which produced the money to be laundered, was a crime. See 18 U.S.C. § 1956(a)(1) (one element of money laundering is “knowledge] that the property involved in a financial transaction represents the proceeds of some form of unlawful activity”). Yet when Jessica Freeland claims that she did not realize that burglary fell within the term “any type of crime,” the majority agrees that burglary in Oakland may riot be thought of as a crime.5
Moreover, we should not defer to the state court’s finding that Freeland was honest because the court did not adequately develop the material facts. At the post-trial hearing before the state court trial judge, Freeland claimed that she answered “no” because she thought the death of her brother was an accident. Transcript, Post-trial Hearing, at 2709. The judge found no “lack of candor.” Id. at 2714. When counsel for the defense cited the parallels between her brother’s death and the instant case, the state court responded, “There’s no foundation establishing how well she knew the brother. We have brothers and we have brothers.” Id. We now know that Jessica and Richard were close.
Even worse, the relevant evidence concerning the circumstances of Richard’s death was not part of the record. The court did not learn that Freeland’s mother testified at Sheppard’s criminal trial, that Sheppard was charged with murder and pled guilty to voluntary manslaughter, that Sheppard paid Freeland’s family $1,800 in criminal restitution, that Freeland was a named plaintiff in a wrongful death action against Sheppard, that the action yielded $15,000, and that Freeland was angry when her father refused to share the proceeds. Nor did the court develop the evidence later revealed in depositions of the sexual assault and multiple burglaries committed against Freeland, or the serious crimes charged against her several immediate relatives.
The California Supreme Court did not remand to allow the development of a better record. While the court specifically considered what evidence it had of the wrongful death action, Dyer, 246 Cal.Rptr. at 227, 753 P.2d at 19, it did not have before it the salient facts. It mentioned the existence of but did not analyze the evidence pertaining to the other crimes and victims and perpetrators. Id. at 228, 753 P.2d at 20. Moreover, the court’s review was for an abuse of discretion. Without the critical evidence, its review could not be meaningful.
In short, Jessica Freeland “failed to answer honestly [several] material question[s] on voir dire.” McDonough, 464 U.S. at 556, 104 S.Ct. at 849. Dyer thus satisfied the first element of the plurality’s test in Mc-Donough. As to the second element, (embraced by a majority) “a correct response [by Freeland to the voir dire questions] would have provided a valid basis for a challenge for cause.” Id. Had Freeland answered the voir dire questions honestly, the court would have known that Freeland’s brother had been shot in the back of the head after being pistol-whipped about the head, just as was one of the victims in this case. It would have known also that Freeland had been the victim of sexual assault, kidnapping, and numerous burglaries, and that three of her relatives had been accused of serious crimes: her uncle of murder and armed robbery, her estranged husband of rape, and her brother of distributing narcotics. Dyer’s trial counsel have testified that if they had known this information at the time, they would have moved to strike Freeland for cause. Given the breadth and the depth of Freeland’s personal experiences with violent crime, and the extraordinary parallels between one of these experiences and the crime at bar, Freeland’s honest answers to the voir dire questions “would have provided a valid basis for a challenge for cause.”
B. IMPLIED BIAS: THE SLAYING OF RICHARD FREELAND
As an alternative to actual bias as grounds for disqualification, “bias [can] be implied or *957presumed from the ‘potential for substantial emotional involvement, adversely affecting impartiality,’ inherent in certain relationships.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990) (quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977)), cert. denied, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1059 (1991). “That [people] will be prone to favor that side of a cause with which they identify themselves either economically, socially, or emotionally is a fundamental fact of human character.” Allsup, 566 F.2d at 71 (quoting Kiernan v. Van Schaik, 347 F.2d 775, 781 (3d Cir.1965)). While “[t]he Supreme Court has never explicitly adopted or rejected the doctrine of implied bias,” Tinsley, 895 F.2d at 527, five Justices in McDonough joined concurring opinions stating that a court may grant a new trial upon a finding of implied bias. 464 U.S. at 556-57,104 S.Ct. at 850-51 (Blaekmun, J., joined by Stevens and O’Connor, JJ., concurring); id. at 558-59, 104 S.Ct. at 851-52 (Brennan, J., joined by Marshall, J., concurring in the judgment).
We determine de novo the existence of implied bias. As Justice O’Connor has explained, a court that applies the implied bias doctrine need not be deterred by 28 U.S.C. § 2254(d) because “state-court proceedings resulting in a finding of ‘no bias’ are by definition inadequate to uncover the bias that the law conclusively presumes.” Smith v. Phillips, 455 U.S. 209, 222-23 n. *, 102 S.Ct. 940, 949 n. *, 71 L.Ed.2d 78 (1982) (O’Con-nor, J., concurring). See Wood, 299 U.S. at 133, 57 S.Ct. at 179 (implied bias is “conclusively presumed as matter of law”); Burton, 948 F.2d at 1158 (“Whether a juror’s bias may be implied from the circumstances is a question of law for this court.”); Cummings v. Dugger, 862 F.2d 1504, 1509 (11th Cir.) (“Although the Supreme Court has not directly addressed the standard of review for a claim of presumed prejudice, this Circuit has treated the standard as a mixed question of fact and law.”), cert. denied, 490 U.S. 1111, 109 S.Ct. 3169, 104 L.Ed.2d 1031 (1989).6
We have twice granted a new trial on the basis of a juror’s implied bias. In Allsup, we presumed that two prospective jurors in a bank robbery trial were biased because they were employed by the bank that had been robbed, though they worked at a different branch. 566 F.2d at 71. We explained: “The employment relationship coupled with a reasonable apprehension of violence by bank robbers leads us to believe that bias of those who work for the bank robbed should be presumed.” Id. at 71-72. In United States v. Eubanks, 591 F.2d 513 (9th Cir.1979), we presumed that a juror at a heroin distribution trial was biased because his two sons were heroin addicts who were in prison for crimes committed to obtain more heroin. We explained: “Regardless of the reason for [the juror’s] nondisclosure, we conclude that his sons’ tragic involvement with heroin bars the inference that Collins served as an impartial juror.” Id. at 517. Cf. Tinsley, 895 F.2d at 529 (no implied bias where juror at rape trial once provided professional counseling services to rape victim).
Other circuits have likewise reversed convictions on the basis of implied bias. See Burton, 948 F.2d at 1159 (10th Cir.) (juror disqualified from trial involving battered woman syndrome defense because she had herself been battered); Jackson v. United States, 395 F.2d 615 (D.C.Cir.1968) (at trial of man who murdered his wife upon discovering affair, juror disqualified who previously had affair with a woman murdered by her husband); United States ex rel De Vita v. McCorkle, 248 F.2d 1 (3d Cir.1957) (en banc) (juror who himself had been victim of a robbery disqualified from robbery trial), cert. denied, 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77 (1957).
Here, Freeland’s brother was pistol-whipped about the head, and then shot in the head. Evidence adduced at Dyer’s trial indicated that Dyer pistol-whipped Bennie Warren about the head, and then shot him in the head. The similarities are extraordinary. Moreover, Freeland herself had been the victim of a sexual assault and of so many burglaries that she could no longer distinguish among them in her mind. The crime *958against Richard, as well as the crimes against Freeland herself, certainly made Freeland as problematic a juror as the bank employees at the bank robbery trial in Allsup, or the father of the jailed heroin addicts at the heroin distribution trial in Eubanks. The court should presume bias.
The majority concedes that at “first glance, it seems extraordinary” that the two homicides are so similar, but argues that “considering the alleged rate of crime in Freeland’s neighborhood, her situation is not so surprising or extraordinary.” Majority Opinion at 939. However, when a brother is slain by a bullet in the back of the head, the majority should not presume that the tendency of the surviving sister to suffer deep and abiding grief and anger is diminished by the local crime rate. Bullets may fly with disproportionate frequency in Freeland’s neighborhood, but she is presumed to be as likely as anyone wherever she lives to be affected by the parallels between the slaying of her brother and the slaying of Bennie Warren.
The majority curiously argues that “[a]l-though her brother was killed by a gunshot wound to the head, she also has relatives who have been convicted of crimes. Thus, Dyer has not shown that she would have been biased for or against him.” Majority Opinion at 939. The rationale seems to be that the crimes committed by and against Free-land’s family simply cancel each other out. The majority gives no special weight to the similarities in the intentional slaying of Richard Freeland by pistol whipping and a bullet to the brain and Bennie Warren’s like fate. Needless to say, there is no support in the cases for the majority’s novel approach. Indeed, we presumed in Eubanks that a juror whose sons were in prison would be prejudiced against the defendant. 591 F.2d at 517; see also Burton, 948 F.2d at 1159 (presuming the victim of batteiy would be biased against a woman who killed her batterer).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Trial counsel is unconstitutionally ineffective when performance is deficient and the defense is prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The former element requires proof that “counsel’s representation fell below an objective standard of reasonableness,” id. at 688,104 S.Ct. at 2064, and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. We review de novo a claim of ineffective assistance of counsel. Moran v. Godinez, 57 F.3d 690, 699 (9th Cir.), cert. denied, — U.S. -, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
Dyer’s trial counsel, John Burris, failed to investigate and present evidence of Dyer’s PCP use on the night of the crime, although proof of using PCP would have been potent evidence to support a defense that Dyer’s mental state on the night of the killings precluded him from forming an intent to MU.7
Competent counsel would have presented evidence to the jury that just hours before committing bizarre acts of violence Dyer smoked a “sherm,” i.e., a cigarette laced with PCP (phencyclidine). Since Dyer took the stand to testify regarding Ms use of other drugs, he could have testified that he accidentaUy used PCP that night (he had revealed this to Dr. Smith). Charles Howard would have confirmed this and was willing to testify that he shared a sherm with Dyer that night. Delphine Dismuke stated in a signed declaration that Dyer came to a party at her home that night, that some of her guests smoked sherms, that Dyer suddenly became uncharacteristically violent, and that she believed he had smoked PCP.8 She was available to testify. Tyrone Ario would have testified that during Dismuke’s party, Dyer *959suddenly became uncharacteristically violent.9 Robert Fluker (Nora Fluker’s brother-in-law) would have testified under subpoena that when he ran into Dyer between the party and the killings, Dyer appeared to be on PCP. The transcripts of the trials of Dyer’s co-felons contain further corroborative evidence.10
PCP, a drug with unique and overwhelming effects,11 can best explain Dyer’s uncharacteristic and psychotic behavior. The most rudimentary of investigations by Burris would have revealed the needed information for a defense based upon Dyer’s use of PCP. There is a reasonable probability that a jury properly informed of Dyer’s PCP use would have returned a conviction less than first degree murder or a sentence less than death. We should find that Burris provided unconstitutionally ineffective assistance of counsel. See In re Cordero, 46 Cal.3d 161, 249 Cal. Rptr. 342, 354-58, 756 P.2d 1370, 1382-86 (1988) (defense counsel ineffective for failure to investigate and present evidence of defendant’s use of PCP); People v. Frierson, 25 Cal.3d 142, 158 Cal.Rptr. 281, 289-93, 599 P.2d 587, 596-600 (1979) (defense counsel ineffective for failure to investigate and present evidence of defendant’s use of angel dust); cf. Wade v. Calderon, 29 F.3d 1312, 1318-19 (9th Cir.1994) (defense counsel not ineffective for declining to use PCP defense where “there was no evidence that [the defendant] ingested PCP on the day of the offense”), cert. denied, 513 U.S. 1120, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995).
A. PREJUDICE
PCP would explain Dyer’s surprising ability to take a nap immediately after injecting himself with “speedballs,” a mixture of heroin and cocaine. “Consistent with the anesthetic effect of PCP, it is common for an individual intoxicated with PCP to fall asleep or otherwise appear to ‘pass out.’” Pitts Declaration at 8. “PCP use could explain Mr. Dyer’s apparent ability to sleep for a period of several minutes, despite his ingestion of stimulants. PCP is a powerful dissociative anesthetic, which was originally employed in anesthesia for surgery____” Bell Declaration at 10.
PCP would explain Dyer’s partial memory loss: Dyer testified that he remembered pistol-whipping Bennie Warren, did not remember forcing the four victims into the car at gun point, remembered sitting in the car and then getting out and hearing gun shots, and did not remember anything else until the next morning. “PCP users frequently suffer true pharmacological amnesia____ [T]he PCP user may remember only some of his actions.” Pitts at 8.
PCP use could explain his inability to fully recall events at the time of the crime. *960PCP is severely disruptive to learning and memory; users frequently suffer true pharmacological amnesia as to their behavior in a drug-altered state. This amnesia may affect the ability to recall an entire incident or select portions of the activity and behavior. Thus, Mr. Dyer’s inability to recall events for a thirty-minute period is consistent with PCP use.
Bell Declaration at 10.
PCP would also explain Dyer’s apparent goal-oriented behavior. While a person on PCP “may perform gross and fine motor functions” and may be able to “deserib[e] what he or she is doing or about to do,” he or she may be “disconnected from an appreciation of the nature and. quality of the act.” Pitts Declaration at 8. “Lay observers might well be unable to discern from Mr. Dyer’s physical appearance and actions his level of cognitive impairment. Mr. Dyer’s apparent ‘goal-oriented’ behavior could be consistent with his being under the influence of, and being severely impaired by, PCP.” Bell Declaration at 9-10.
The state’s impeachment of the defense’s drug expert, Kate Yago (Bell), M.D., demonstrates the prejudice from the absence of PCP evidence. Burris engaged Yago to express an opinion on the mental effects of alcohol, marijuana, cocaine, and heroin. Burris hired Yago on June 16, 1983, five weeks into the trial and only ten days before Yago had to take the stand, so Yago was completely dependent on Burris for information about the night in question. Burris neglected to inform Yago that Dyer had used PCP that night, though he had been so informed by Dr. Smith. When the state asked Yago on cross-examination how she could explain Dyer’s memory loss, given Dyer’s use of speedballs and his subsequent actions, Yago answered, “I can’t.” Yago subsequently stated that if she had known about Dyer’s PCP use, she would not have made this highly damaging admission.
Compared to the other drugs Dyer used on the night of the crime, PCP is of a different order of magnitude in its ability to alter the personality, impair cognitive and volitional functions, dissociate a person from his actions, and induce violence. PCP can best explain Dyer’s ability to take a nap immediately after shooting up, his partial memory loss, and his apparent goal-oriented behavior. There is a reasonable probability that a jury properly informed of these facts would have returned different verdicts. We should find prejudice.
B. DEFICIENT PERFORMANCE
Burris’ inadequate investigation of Dyer’s PCP use during the night of the crimes, and his failure to present any PCP evidence to the jury at either phase of the trial, falls “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.
Burris knew that Dyer used PCP during the night of the crime. See Dyer v. Calderon, No. C-89-3454-VRW, op. at 25 (N.D.Cal. Dec. 12, 1994) (“It is undisputed that Burris had some indication that evidence of PCP might be relevant to Dyer’s defense.”). When David Smith, M.D., met with Dyer in July 1982, he learned that Dyer used PCP on the night of the crime. Smith passed this information along to Burris, but Burris “didn’t seem that interested in what I had to say.” Transcript, Evidentiary Hearing, at 2-432. Burris’ handwritten notes clearly contain the words “PCP” and “sherm.” When confronted with these notes, Bums admitted that “I certainly operated upon the assumption, I believe, that he smoked [PCP].” Deposition of John L. Burris, May 19, 1994, at 89. At Dyer’s evidentiary hearing one month later, Burris backed away from this interpretation of his notes, stating: “The indication was that Mr. Dyer had not [smoked a sherm], but that certainly was an open question.” Even if Dyer’s use of PCP was an “open question,” Burris could have settled the matter by simply asking Dyer if he smoked a sherm.
Burris conducted only a superficial investigation of Dyer’s drug use; even worse, he conducted no investigation whatsoever of Dyer’s PCP use. In a letter to a professional investigator, Burris raised the possibility that Dyer had “consumed alcohol and smoked marijuana or dope,” but neglected to mention PCP. When Burris sent Timothy Bluitt, one of his law clerks, to question witnesses, he *961instructed Bluitt to gather character evidence and did not even mention the significance of Dyer’s drug use to the defense. As a direct result of this oversight, when Bluitt spoke with two witnesses who would have persuasively testified that Dyer used PCP hours before the crime — Charles Howard and Delphine Dismuke — Bluitt asked no questions and accordingly received no information about Dyer’s drug use. When Bluitt, an agent of the court, inquired only about Dyer’s character, Charles and Delphine probably believed that telling what they knew about Dyer’s use of PCP would hurt Dyer.
Burris never uttered the word “PCP” before the jury, though there is a reasonable probability that PCP evidence would have made a difference at either the guilt phase or the sentencing phase or at both. Very disturbing is the fact that Burris neglected to share his PCP information with the defense’s drug expert, Dr. Yago. This failure led directly to Yago’s highly damaging and totally unnecessary admission that the drugs she was aware of that Dyer had consumed that night could not explain his memory loss.
The majority argues that Burris’ failure to investigate and present evidence about Dyer’s PCP use was a legitimate “tactical decision.” Majority Opinion at 941-942. It is true that “[tjactical decisions that are not objectively unreasonable do not constitute ineffective assistance of counsel.” Hensley v. Crist, 67 F.3d 181, 185 (9th Cir.1995). However, Burris simply made no decision whatsoever, reasonable or otherwise, regarding PCP because it never occurred to him that PCP had any special significance to a defense based upon the inability to form an actual intent to Mil. In post-conviction depositions, Burris claimed that “[PCP] would just have been more drugs,” Transcript, Evidentiary Hearing, at 2-212, did not know the difference between LSD and PCP, and claimed that the effects of PCP would have worn off during the three or four hours between the sherm party and the homicides.12 These statements demonstrate an alarming ignorance of the effects of and elementary distinctions between the drugs involved in the case. Minimal standards of professional competence require that a lawyer who is arguing a defense based upon the incapacity to form an intent to Mil learn the basic characteristics of all of the drugs he has reason to suspect the defendant used. Burris did not meet these minimal standards. Burris did not understand the significance of PCP to his own defense. He simply did not take the time or have the time to grasp the essentials of the best defense he could present in this death penalty case.13
III. THE BEEMAN ERROR
Dyer was found guilty of all counts charged against him: first degree murder of Nora Fluker, first degree murder of Floyd Murray, attempted murder of Belinda Murray, attempted murder of Bennie Warren, and Mdnapping of Fluker, Floyd Murray, Belinda Murray, and Warren. The judge *962instructed the jury as to each count that Dyer could be found guilty if he directly committed the crime or if he aided and abetted its commission. The judge instructed generally as to aiding and abetting liability, making the instruction applicable to Dyer’s charges of first degree murder of Fluker and Floyd Murray, attempted murder of Belinda Murray and Warren, and kidnapping of the four victims. The court instructed the jury as follows: “A person aids and abets the commission of a crime if with knowledge of the unlawful purpose of the perpetrator of the crime he intentionally aids, promotes, encourages or instigates by act or advice the commission of such crime.”
In People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 (1984), the California Supreme Court held that such an instruction is unconstitutionally infirm because it allows a jury to convict the defendant as an aider and abetter without necessarily finding that the defendant intended to encourage or facilitate the offense with which the principal was charged.14 On direct review of Dyer’s conviction, the California Supreme Court held that the instructions at Dyer’s trial were flawed by Beeman error, but concluded that the error was harmless. Dyer, 246 Cal.Rptr. at 231, 753 P.2d at 23.
On federal habeas review, Beeman error is subject to the harmless error review of Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946): “whether the error ‘has substantial and injurious effect or influence in determining the jury’s verdict.’ ” California v. Roy, — U.S. -,-, 117 S.Ct. 337, 338, 136 L.Ed.2d 266 (1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)). In Roy, the Court further elaborated that “where a judge, in a habeas proceeding, applying this standard of harmless errors is in grave doubt as to the harmlessness of an error, the habeas petitioner must win.” Id. (citing O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (internal quotations omitted).
The majority concludes that the Beeman error at Dyer’s trial was harmless, asserting that “[n]o evidence in the record could support a finding” that Dyer did not intend to kill Nora Fluker, and that “no evidence supports a finding that Dyer lacked the specific criminal intent to assist in Floyd [MurrayJ’s murder.” Majority Opinion at 945. Under Roy, however, our inquiry is whether the misdescription of a key element of the crime of aiding and abetting, the omission of specific intent to commit, encourage, or facilitate the confederate’s crime, Roy, — U.S. at -, 117 S.Ct. at 337, places us in grave doubt as to the harmlessness of that error’s effect upon the jury’s verdict. It does.
The faulty instructions were given with regard to both “the commission or attempted commission of a crime.” Thus, the jury could have found Dyer guilty of each of the charges on either an aiding and abetting theory, or for directly and personally committing the offenses. Because the verdict forms did not specify whether Dyer was guilty as a principal or as an aider and abetter we cannot know from the verdicts themselves upon which theory the jury relied.
We do know that the jury found that Dyer did not cause great bodily injury to either Floyd Murray or Belinda Murray,15 so we know that the jury convicted Dyer of the murder of Floyd Murray and the attempted murder of Belinda Murray only as an aider and abetter. The jury also found that Dyer intentionally caused great bodily injury to Nora Fluker and Bennie Warren. However, we cannot know whether the jury convicted Dyer of the murder of Nora Fluker and the attempted murder of Bennie Warren as a principal or as an aider or abetter because *963the jury forms do not make this explicit. As the state trial court found, this finding could support either an aiding and abetting or a direct liability theory by the jury.
The California Supreme Court held, and the majority agrees, that the issue only affects the Floyd Murray murder count, as the jury found that Dyer “personally murdered” Nora Fluker, and intended to kill both Bennie Warren and Belinda Murray. Majority Opinion at 945. To reach this conclusion, the majority had to assume that the jury found that Dyer personally murdered Fluker and intended to murder Warren and Belinda Murray, yet the jury’s findings support either direct or aiding and abetting liability and we cannot know which. The jury only found that Dyer personally inflicted and intended to inflict great bodily injury on Fluker and Warren; California law does not allow us to presume intent to kill from the intentional infliction of great bodily injury. See People v. Ratliff, 41 Cal.3d 675, 224 Cal.Rptr. 705, 716-17, 715 P.2d 665, 676-77 (1986).
There are no findings by the jury that demonstrate that the jury found that Dyer had the intent to facilitate the murder or attempted murder of any of the four victims. The jury could have found that Dyer had different intents towards different victims, or changed his mind in the middle of the incident, or for any other reason lacked the requisite intent. Perhaps the jury simply ignored the question of Dyer’s intent altogether, which is precisely the danger of Bee-man error.
The Beeman error is harmful in this case under the Roy/Kotteakos standard because it “had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. As a reviewing court, we are unable to conclude that the jury considered Dyer’s intent at all, let alone made any findings of intent. In this situation, a conscientious judge can only be “in grave doubt as to the harmlessness of the error,” O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995). I would grant a new trial on this ground.
IV. EX PARTE COMMUNICATIONS
Two improper ex parte communications tainted the penalty phase of Dyer’s trial, one between a witness and three jurors, the other between the judge and several jurors. Each independently is grounds for entitling Dyer to new penalty proceedings.
A. EX PARTE CONTACT WITH A WITNESS
Bennie Warren, who survived bullet wounds inflicted by Dyer on the night of the crime, testified at Dyer’s trial. According to Rick Bartholomew, the jury foreman, Warren approached Bartholomew and two other jurors outside the courthouse after a day of the trial and said “something to the effect of ‘Hang him.’ ” Deposition of Rick Bartholomew, August 11,1993, at 5.
“In order to safeguard an accused’s constitutional right to an impartial jury, private communications between jurors and witnesses are absolutely forbidden.” United States v. Williams, 822 F.2d 1174, 1187 (D.C.Cir.1987) (footnote omitted); see also Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) (forbidding, “[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury”); Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892) (forbidding “[pjrivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge”). Warren’s out-of-court communication with three of the jurors, urging hanging, the ultimate issue to be determined at the sentencing phase, violates the prohibition against ex parte communications with the jury and is clearly prejudicial.
Such error is trial error, reversible if it had a substantial and injurious effect or influence in determining the jury’s verdict. Thompson v. Borg, 74 F.3d 1571, 1574-75 (9th Cir.) (quoting Brecht, 507 U.S. at 629, 113 S.Ct. at 1717), cert. denied, — U.S. -, 117 S.Ct. 227, 136 L.Ed.2d 159 (1996). We frequently have held that ex parte communication between third parties and the *964jury was prejudicial and grounds for a new trial. Lawson v. Borg, 60 F.3d 608, 610 n. 2, 612-13 (9th Cir.1995) (“substantial and injurious effect” found where one juror told others he heard the defendant “had a violent temper”); United States v. Maree, 934 F.2d 196, 201-02 (9th Cir.1991) (for purposes of motion for new trial, actual prejudice found where juror receives ex parte advice from juror’s Mends regarding petitioner’s guilt); see also Dickson v. Sullivan, 849 F.2d 403, 406-08 (9th Cir.1988) (prejudice found where two jurors heard a sheriffs out-of-court statement that defendant had “done something like this before”); Stockton v. Commonwealth of Virginia, 852 F.2d 740, 743-746 (4th Cir.1988) (prejudice found where the owner of a diner where jurors were dining said to jurors, “I hope you fry the son-of-a-bitch”), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989); cf. United States v. Endicott, 869 F.2d 452, 454, 457 (9th Cir.1989) (no prejudice where juror makes improper comments to witness).
Here, it is likely that Bennie Warren’s statement had a substantial and injurious influence in determining the jury’s verdict. His advice to three jurors that they “hang” Dyer is extremely inflammatory and prejudicial on two levels: he urged the jury to decide, based on his own sense of outrage, that Dyer should hang; and he may have left the impression with the jury, contrary to fact, that all crime victims and their families want revenge. See, e.g., “Group of Murder Victims’ Families Opposes Execution,” San Francisco Chron., Sept. 30, 1995, at A15.
This face-to-face admonition from a surviv- or of Dyer’s violence may well have had a decisive impact upon a wavering juror. As in Maree, Warren presented “strong opinions” in an “aggressive manner” on the “proper outcome of [Dyer’s] case.” 934 F.2d at 202. As in Lawson, the out-of-court statement ‘“was both directly related to a material issue in the case and highly inflammatory.’ ” 60 F.3d at 613 (quoting Dickson v. Sullivan, 849 F.2d 403, 407 (1988)). As the Fourth Circuit held in Stockton, the jurors “were exposed to the type of pointed and prejudicial suggestion whose utterance encourages the all too human tendency to pursue the popular course.” 852 F.2d at 746.
B. EX PARTE CONTACT WITH THE JUDGE
Jury foreman Bartholomew also testified that while he and other jurors were at a restaurant, they ran into the trial judge. According to Bartholomew, “He commended us for work well done, and he brought a fellow with us to explain that he can’t speak to us singularly or alone and that he was the 13th juror, in essence, and he had to go and review and that’s why he couldn’t really socialize____ I think he made reference to he could change [the verdict] if he thought we were in error.” (emphasis added) Bartholomew Declaration at 5-6. The encounter occurred after the verdict of guilt and before or during the penalty phase.16
Statements “that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision” are constitutionally impermissible. Romano v. Oklahoma, 512 U.S. 1, 8-10, 114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994) (quoting Darden *965v. Wainwright, 477 U.S. 168, 184 n. 15, 106 S.Ct. 2464, 2473 n. 15, 91 L.Ed.2d 144 (1986)). See Caldwell v. Mississippi 472 U.S. 320, 342, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985) (O’Connor, J., concurring in part and concurring in the judgment) (the Constitution forbids “inaccurate and misleading information that minimizes the importance of the jury’s deliberations in a capital sentencing ease”).
The trial judge’s ex parte communication that he was the “13th juror” and that he could reverse the jury’s verdict does not accurately reflect California law. After every sentence of death returned by a California jury, the trial judge undertakes an automatic review of the verdict. CaLPenal Code § 190.4(e). During this review, the judge “must independently reweigh the evidence of aggravating and mitigating circumstances and then determine whether, in the court’s independent judgment, the weight of the evidence supports the jury verdict.” People v. Edwards, 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 707, 819 P.2d 436, 447 (1991), cert. denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992). However, there is no such review where the jury spares the life of a capital defendant. Moreover, the judge’s function during this review “is not to make an independent and de novo penalty determination----” People v. Mickey, 54 Cal.3d 612, 286 Cal.Rptr. 801, 852, 818 P.2d 84, 135 (1991) (citation and quotation omitted), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992). Indeed, courts have repeatedly upheld pro forma reviews under § 190.4(e). See, e.g., People v. Allison, 48 Cal.3d 879, 258 Cal.Rptr. 208, 222, 771 P.2d 1294, 1318 (1989) (because the propriety of the sentence of death was “self-evident from the record,” defendant “was not prejudiced by the trial judge’s failure to adequately state his reasons” for upholding the verdict), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990); Odle v. Calderon, 884 F.Supp. 1404, 1431 (N.D.Cal.1995) (affirming because the trial judge “made findings in the record, albeit cursorily”).
The relationship under California law between the jury and the judge during the sentencing phase of a capital trial is complex; the statement that the judge is the “13th juror” and could change an erroneous verdict is a misleading simplification. Under § 190.4(e), the trial judge may not review a sentence of life imprisonment, may not make “an independent and de novo penalty determination,” and may uphold a sentence of death with cursory findings. Contrary to law, a reasonable juror, relying on the words of the trial judge, could have believed that the sentencing verdict was purely advisory and that the judge bore the ultimate burden of deciding Dyer’s fate. The judge’s comments thus “misle[ ]d the jury as to its role in the sentencing process in a way that allow[ed] the jury to feel less responsible than it should [have] for the sentencing decision.” Romano, 512 U.S. at 9, 114 S.Ct. at 2010 (citation and quotation omitted).17
In Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995), cert. denied, — U.S.-, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996), decided a year after Romano, the Eighth Circuit reached the same conclusion. There, the prosecutor told the jury during the sentencing phase of a capital trial that the judge was the “thirteenth juror” and could overrule the jury’s verdict. Id. at 711. The court noted the “technical accuracy” of these statements— Missouri law allows judges to reduce an “excessive” punishment — but nonetheless granted the writ. Id. at 713. The court reasoned, in part, that “[t]he judge could not have sentenced [the defendant] to death absent the jury’s recommendation to do so,” id.; the same is true under California law. As in Driscoll, the judge in the instant case
essentially told the jury that it could defer the extremely difficult decision of whether or not [Dyer] should be sentenced to death. As a consequence, the jury made the decision that [Dyer] would be killed without full recognition of the importance and finality of doing so and, therefore, without affording the decision the full consideration it required.
Id.
Because of the unacceptably high risk that the judge’s ex parte comments misled the *966jury as to its role at sentencing and thus led the jury to feel less responsibility than it should have for Dyer’s fate, there was a substantial and injurious effect on the jury’s deliberations, Brecht, 507 U.S. at 623, 113 S.Ct. at 1713-14.18
V. CONCLUSION
It is not often that so many grave defects taint one trial. A dishonest juror failed on voir dire to disclose under questioning the repeated and awful violent crimes committed against her family and herself, and by family members, and, particularly, failed to disclose the circumstances of the killing of her brother, Richard. She was biased in fact and also should have been presumed biased as a matter of law. Defense counsel was too busy with other cases to understand the significance of his client’s use of PCP hours before the crimes for which he stood trial, and to prepare and present a defense based upon an inability to form the actual intent to kill with the help of experts adequately informed by him and with the presentation of eye-witnesses to the PCP use by his client. His performance fell below an objective standard of reasonableness and prejudiced the defense. The admitted Beeman error was not harmless. Jury deliberations at the penalty phase were tainted by the inflammatory ex parte statements of a witness-victim and the misleading and entirely improper ex parte remarks of the trial judge to certain jurors. Any one of the defects entitled Dyer to redress. Cumulatively they compel redress.
Dyer has been sentenced to death without a fair trial. He is entitled to a new trial. Accordingly, I dissent.
. The majority states that under McDonough, a showing of juror dishonesty is a necessary predicate to obtaining a new trial. Majority Opinion at 935 & n. 1. This statement is baffling for three reasons. First, five Justices in McDonough joined concurring opinions stating that juror dishonesty is not a necessary predicate to a finding of juror bias. 464 U.S. at 556-57, 104 S.Ct. at 850-51 (Blackmun, J., joined by Stevens and O’Connor, JJ., concurring); id. at 558, 104 S.Ct. at 851 (Brennan, J., joined by Marshall, J., concurring in the judgment). Second, every other circuit to consider the question has concluded that McDonough does not require a finding of juror dishonesty. Zerka v. Green, 49 F.3d 1181, 1186 n. 7 (6th Cir. 1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.), cert. denied, 506 U.S. 1000, 113 S.Ct. 602, 121 L.Ed.2d 538 (1992); Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir.1988). Third, the sole authority cited by the majority, United States v. Edmond, 43 F.3d 472 (9th Cir. 1994), did not hold that a finding of juror dishonesty is a necessary predicate to a new trial, but held only that a juror's "simple forgetfulness” does not fall within "the scope of dishonesty as defined by McDonough.” Id. at 474. Were dishonesty a necessary predicate I suggest it has been amply demonstrated on this record.
. While Dyer's appeal was pending, The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title I, § 104, 110 Stat. 1218, amended 28 U.S.C. § 2254. All references to 28 U.S.C. § 2254 are to the pre-amendment version. Jeffries v. Wood, 103 F.3d 827 (1996).
. The meaning of these questions is obvious. The finding of the state court that these questions were ambiguous is thus “not fairly supported by the record." 28 U.S.C. § 2254(d)(8).
. Freeland’s post-conviction behavior lends farther doubt that Freeland could lie about all these matters and still be a fair juror. Freeland has twice used her position as an employee of the California Department of Corrections to review the contents of Dyer’s prison file, though prison regulations expressly forbid such conduct. Free-land worked on death row at San Quentin while Dyer was there; she claims she did not know it at the time. Freeland admits having attended "at least one” court proceeding connected to Dyer's post-conviction appeals; she claims she follows the case only because of harassment by Dyer's counsel. Even more disturbing, when Dyer’s counsel attempted to secure Freeland's attendance at the evidentiary hearing before the federal district court, Freeland apparently evaded 21 separate attempts to serve her with a subpoena. The federal court hearing would have been the first time that a judge would have observed Freeland's demeanor when confronted with the deposition testimony that showed the discrepancies between her voir dire answers and the facts.
. The majority fails to take into account that Freeland, herself, worked for the California Department of Corrections.
. We did not address the standard of review to be applied in implied bias cases in Tinsley, 895 F.2d at 526-29.
. Under California law, evidence of mental disease, disorder, or defect is admissible on the issue of whether the accused actually formed an intent to kill-i.e., whether the accused actually formed express malice. People v. Saille, 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 374, 820 P.2d 588, 596 (1991).
. Dismuke stated: “At one point, [Dyer] suddenly began acting wild. He picked a fight with my brother Roger, who was [Dyer’s] friend. It was very unusual for [Dyer] to act in this crazy way.” Declaration of Delphine Dismuke, March 7, 1989, at 2.
. Ario stated, "All of a sudden, [Dyer’s] actions changed completely. He started picking a fight____ [His] eyes were wild, he was waving his arms and shouting and threatening violence. I had never seen [Dyer] act like this before." Declaration of Tyrone Ario, January 7, 1989, at 2.
. Defendant Michael Jackson testified that people were smoking sherms at Delphine Dismuke's party, and that Dyer was subsequently frightened, blank-looking, shaking, sweating, and uncharacteristically violent. Jackson stated, "I never seen him upset or strange like he was that night____ [H]e looked like he was in a trance, like he was — his body was there, but he wasn't there.” Trial Transcript, People v. Jackson, (No. 74170), at 467. Defendant Cleveland Ario testified that Dyer was "tripping," shaking, trembling, and sweating. Trial Transcript, People v. Ario, (No. 71381), at 11. Bennie Warren, a survivor of the crime, testified that ”[h]e seemed like he had turned into a[Mr.] Hyde____ An entirely different person.” Id. at 253.
.PCP is a dissociative anesthetic, which means that it impairs normal cognitive brain function. The user performs physical activities without judgment or reasoning. PCP produces a mental state in which the recipient is oblivious to what is happening to his or her body____ Because the individual who has consumed PCP is dissociated from normal cognitive reasoning, bizarre and impulsive behaviors often occur, including spontaneous violence.
Declaration of Ferris N. Pitts, Jr., M.D., May 27, 1994, at 7. The use of PCP can induce “random, detached, inappropriate violent acts. It is particularly associated with bizarre episodes of violent behavior.” Declaration of Kate McColl Bell, M.D. (known as Kate Yago at the time of trial), Dec. 26, 1994, at 8-9. "PCP is more potent pharmacologically than alcohol, marijuana, cocaine or heroin. The ingestion of these other drags may exacerbate the effects of PCP, but the effects of the PCP will be dominant.” Pitts Declaration at 9.
. To the contrary, "[t]he disinhibiting and dissociative effects of PCP would have persisted for 24 hours or longer after Mr. Dyer ingested it.” Pitts Declaration at 6.
. Bluitt described Burris' preparation for Dyer's trial as follows:
Mr. Burris, the only litigation lawyer in the office, maintained a hectic caseload. The constant demands of Mr. Burris's trial schedule left little time for reviewing assignments with him. I constantly found it difficult to schedule time with Mr. Burris and our conversations were usually brief and often interrupted with other matters----
I attempted to relay the information that I had learned [from interviewing witnesses] to Mr. Burris. But invariably, because Mr. Burris rarely had time for me due to the demands of his other cases, the most I would be able to report to him was that I had spoken to the witness. I was never able to provide an oral report to Mr. Burris about the substance of the interview. Thus, he was never able to instruct me on follow-up questions for the witness that I had interviewed or guidance for questioning future witnesses....
Mr. Burris was under a tremendous amount of pressure and stress in the months preceding Mr. Dyer's trial. During the entire time that I worked for Mr. Burris [summer 1982 through June 1983], there were an overwhelming number of cases — many of which were high profile, complex cases — that placed endless emotional, physical, and intellectual demands on Mr. Burris.
Declaration of Timothy Bluitt, May 26, 1994, at 1-6.
. In Beeman, the Court concluded that "an appropriate instruction should inform the jury that a person aids and abets the commission of a crime when he or she, acting with 1) knowledge of the unlawful purpose of the perpetrator, 2) the intent or purpose of committing, encouraging or facilitating the commission of the offense, 3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” Dyer, 246 Cal.Rptr. at 228, 753 P.2d at 20 (citing Beeman, 199 Cal.Rptr. 60, 674 P.2d 1318).
. Indeed, the prosecutor admitted that the evidence could not establish beyond a reasonable doubt that Dyer shot Floyd Murray.
. When asked when this encounter occurred, Bartholomew testified: "I’m not real sure. It was sometime towards the end of the trial." Bartholomew Declaration at 6. He had previously signed a declaration stating that the encounter with the judge occurred between the guilty and penalty phases of the trial. Id.
Alfonsa L. Carney, another juror who remembered this encounter, testified as follows:
CARNEY: And as I remember it, the contact we had with the judge was after we had served as jurors. I don’t know whether it was during the phase — I think it was after the verdict.
QUESTION: After the guilt phase?
CARNEY: Yes, I think so. I'm not sure of that, but I'm positive we had no contact with him when we sat as jurors.
QUESTION: But it may have been between the guilt and penalty phases?
CARNEY: Yes.
Deposition of Alfonsa L. Carey, August 19, 1993, at 9. Carney apparently confused the end of the guilt phase with the end of the trial. In any event, she repeatedly agreed that the encounter could have occurred during the penalty phase of Dyer’s trial.
The fact that the trial judge so scrupulously avoided ex parte contact with the jurors indicates that the trial was still in progress. The fact that he commended the jurors for work well done indicates only that the guilt phase was over.
. The majority argues that "the judge was simply attempting to avoid any prolonged contact without appearing rude.” Majority Opinion at 947. Be that as it may, it is his words that count. What they convey to the jury must be our focus.
. The majority argues that the jury instruction corrected any prejudice caused by the judge's ex parte statement. Majority Opinion at 948. These were the instructions: “I have not intended by anything I have said or done or by any questions that I may have asked to intimate or suggest what you should find to be the facts on the questions submitted to you____" However, this instruction merely reminded the jury that it had to determine the facts for itself without second-guessing the judge. It did not address the power of the judge to reverse the sentence returned by the jury, or in any other way inform the jury that responsibility for deciding whether to execute Dyer rested on its shoulders.