In 1983 an Indiana state court convicted D.H. Fleenor of murder and sentenced him to death. After exhausting his state remedies, see Fleenor v. State, 514 N.E.2d 80 (Ind.1987); Fleenor v. State, 622 N.E.2d 140 (Ind.1993), he sought federal habeas corpus, lost, and appeals. The only challenges, here as in the district court, are to the sentence. District Judge Hamilton wrote a 97-page opinion; lucid and meticulous, the opinion thoroughly discusses and soundly resolves all the issues presented by Fleenor’s highly competent and experienced counsel. We discuss only two issues, and for the rest rely entirely on Judge Hamilton’s opinion.
The first and more important issue comes out of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Mississippi, as in most states, the decision for or against death is made by the jury. The prosecutor told the jury that “your decision is not the final decision .... Your job is ... automatically reviewable by the Supreme Court.” The trial judge explained to the jury that its verdict “is reviewable automatically as the death penalty commands.” Id. at 325-26, 105 S.Ct. 2633. The Supreme Court held that this wording constituted reversible error; the suggestion that “the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.” Id. at 333, 105 S.Ct. 2633.
In Indiana, however, unlike Mississippi, the jury does not have the ultimate power of decision. The jury makes a recommendation to the judge about whether or not to impose the death penalty, but the judge is not required to follow the recommendation — it is his decision to make, not the jury’s, Ind.Code § 35 — 50—2—9(e) (“The court shall make the final determination of the sentence after considering the jury’s recommendation...; the court is not bound by the jury’s recommendation”)— although the Indiana courts have held that he is required to give the recommendation “due consideration,” Fleenor v. State, supra, 622 N.E.2d at 143, because the jury’s recommendation is a “valuable contribution” to the sentencing process. Brewer v. State, 275 Ind. 338, 417 N.E.2d 889, 909 (1981); see also Minnick v. State, 698 N.E.2d 745, 760 (Ind.1998); Saylor v. State, 686 N.E.2d 80, 87 (Ind.1997); Peterson v. State, 674 N.E.2d 528, 543 (Ind. 1996). Such a system of capital sentencing is constitutionally permissible. Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995); cf. Schiro v. Farley, 510 U.S. 222, 226-27, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994).
Caldwell cannot be applied literally to this case because the responsibility for the ultimate determination whether to impose the death penalty does not rest with the jurors, but with the judge. Several decisions of the Eleventh Circuit assume that Caldwell stands for the broader principle that the jury must not be led to believe that its decision for death will have less weight in the ultimate determination of the defendant’s fate than state law gives it. Johnston v. Singletary, 162 F.3d 630, 643-44 (11th Cir.1998); Duren v. Hopper, 161 F.3d 655, 664 (11th Cir.1998); Davis v. Singletary, 119 F.3d 1471, 1481-85 (11th Cir.1997); Julius v. Johnson, 840 F.2d 1533, 1544 (11th Cir.1988) (per curiam). Two of the cases (Johnston and Davis) come from Florida, where the judge is required to give the jury’s recommendation for or against death “great weight.” Tedder v. State, 322 So.2d 908, 910 (Fla. 1975) (per curiam). There is no such requirement in Indiana — or in Alabama, where the other two Eleventh Circuit cases come from, but those cases do not discuss the significance of this difference. Nor do they hold — they merely assume without discussion — that the principle of Caldwell is applicable to capital cases from Alabama. In Indiana, the sentencing judge must give due consideration to the jury’s recommendation, but he need not give it any particular weight. It is obscure *1099in these circumstances how a prosecutor or judge could mislead the jury about how much weight its recommendation would have. But let us set our doubt about Fleenor's being able to invoke Caidwell to one side and assume without having to decide that even in an Indiana death penalty case a sentence of death could be found unconstitutional if the jury had been misled concerning the significance of its recommendation.
Judge, prosecutor, and defense counsel all made clear repeatedly to the jury in this case that the jury's role in the sentencing process was to make a recommendation for or against death, and that although the recommendation (as the word "recommendation" implies) would not be binding on the judge, it would be given due weight and recognized as a "valuable contribution" to the sentencing process. So far, so good; the jury was told exactly what its proper role is under Indiana law. But the prosecutor and the judge said other things as well. In voir dire the judge told one juror that "your recommendation is just that. It's a recommendation; it is not binding on the Court.... The Court may ignore it; the Court can accept it. In the final analysis the decision will be up to the Court." The defendant fastens on the word "ignore" (which the judge used with another juror as well). But words must be read in context. When "ignore" is opposed not to "give careful attention to" but to "accept," and when the subject is "recommendation," "ignore" clearly means "not follow" rather than "pay no attention to." So what the judge was telling these jurors was true, and it was also something they were entitled to know, as the defendant concedes.
It was also at least as likely to help as to hurt the defendant. For it was used primarily to allay the concerns of prospective jurors troubled by capital punishment by pointing out to them that they would not have the full burden of responsibility for sending a person to his death even if they voted for the death penalty. Prospective jurors who express adamant opposition to the death penalty are excludable for cause from the jury in a capital case. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Smith Fairman, 862 F.2d 630, 634 (7th Cir.1988); Foster v. Delo, 39 F.3d 873, 881 (8th Cir.1994). The explanation of the jurors' role in an Indiana death case, of which the defendant now complains, made it more likely that the jury would include persons with qualms about the death penalty, and such persons were more likely than the average juror to be moved by defense counsel's impassioned plea (of which more shortly) to spare his client.
More troublesome is the disquisition on mistake in the prosecutor's rebuttal argument. He noted that there had been "a lot of talk [in defense counsel's closing argument] about what if we make a mistake." To this he responded:
The judge is going to consider your final recommendation..,. He's gonna make the final decision. Number One. Number Two, the law of this State requires-it'snot optional-it requires that every death penalty decision is reviewed by the Supreme Court of this State. The Supreme Court of Indiana is gonna, automatically, review a death penalty case in this State. There's governors; there's Federal Judges; U.S. Supreme Court Justices. . . . You are asked to make a recommendation-a serious recommendation. It's not the end of this case..., You're only part of it. The Judge is only part of it.... Maybe the Jury's wrong.... And then, we go to the Indiana Supreme Court ... and then beyond ... we know there are many other recourses if somebody's made a mistake in this kind of case.
This sounds much like what the prosecutor and the trial judge said in Caidwell. But there is a critical difference. The jury here already knew that it was not going to determine the defendant's penalty. It was a detail whether it thought the penalty was *1100going to be decided by just the trial judge, or by the trial judge plus the state supreme court and federal judges. In Caldwell, it was the jury that was going to decide the penalty subject only to limited judicial review, yet the jury may have inferred from what the prosecutor and trial judge said that their determination actually was subject to plenary review. In the present ease, the jury wasn’t going to decide anything; or, stated differently, its decision would be subject to plenary review, by the trial judge. Everyone knows that after a death sentence is imposed, there are tiers of appellate review designed to catch errors; the prosecutor wasn’t telling the jurors anything they didn’t know already. Appellate review is a fact of almost all criminal cases that are tried. Knowledge of this does not cause jurors to take lightly their sentencing responsibilities.
It could be argued that the very fact that Indiana juries have only a recommending role in capital sentencing makes any dilution of their role particularly dangerous. If they are told not only that their recommendation is weightless but also that they are backstopped by endless tiers of appellate review, they may go about their business with an unseemly casualness. But they were told nothing that is not true. Under Indiana law, the judge is not required to give their recommendation weight; and all capital sentences are multiply reviewable. The objection if any is not to what the jurors in this case were told, but to the Indiana system, the constitutionality of which is not, however, challenged.
If, as we greatly doubt, the prosecutor went too far, it was either in mentioning appellate courts at all (but surely that added nothing to what the jurors knew already) or in failing to explain that while the trial judge would be making the sentencing decision, subsequent review would be largely limited to mistakes of law. We cannot believe that the jury’s deliberations would have been affected by either alteration- — especially when we consider the closing argument of the defense counsel, to which the prosecutor was replying. The defense counsel explained to the jury, passionately and at length, that while his client had killed out of anger (he had killed the mother and stepfather of his estranged wife), they, the jurors, if they recommended death for his client, would be participating in a premeditated killing motivated solely by a thirst for revenge (for counsel had argued that revenge is the only possible motive for the death penalty). “I would hope,” he told the jurors, “that you resent being made party to the premeditated killing of a person out of revenge. ... We are diminished when we deliberately participate in the taking of the life of another human being and, especially, if the best justification is that of revenge.” He emphasized each juror’s personal responsibility:
There is no way that you can ever escape or avoid the responsibility for recommending to take the life of a fellow ... human being. This is a personal responsibility that exists in this courtroom, today, and is upon the shoulders of each one of you.... Surely one of you will stand before your fellow Jurors and argue for D. to — to say why we should not kill him.
To drill the point home, he told the jury a story about two boys walking in the woods, one holding an injured bird in his hand. The other boy urges the first boy to kill the bird. “This prosecutor wants you to kill D.H. Fleenor. It’s in your hands now.” And counsel added, “You are in a unique position.... You can extend mercy to D. Fleenor.” This was of course wrong; the judge could override the jury’s recommendation for mercy. Minnick v. State, supra, 698 N.E.2d at 760. Counsel also emphasized the possibility of error in a death case, where the judgment once executed cannot be recalled. He kept saying such things as, “How can you be sure that your decision to recommend the death *1101penalty for D.H. Fleenor is, indeed, correct?”
It was no doubt because the defendant’s lawyer tried to distract the jury from its circumscribed role in capital sentencing— to make the jurors think they would be pulling the switch as it were and that no error they made could be undone — that the prosecutor emphasized the jury’s limited role. Maybe he overemphasized it slightly; but if so he merely restored a balance disturbed by defense counsel. At the argument in our court, the defendant’s present counsel conceded that trial counsel had gone beyond the proper bounds of advocacy. He had seriously misrepresented the role of the jury in an Indiana capital case; he had implied that each juror was judge, jury, and executioner all rolled into one.
Just the other day the Supreme Court noted the acute difficulties involved in re-sentencing a defendant after many years (17 in that case, 15 in ours), and emphasized that even in a capital case the defendant must show that he was actually prejudiced by the errors of which he is complaining. Calderon v. Coleman, — U.S. -, 119 S.Ct. 500, 503-04, - L.Ed.2d -(1998) (per curiam). In this case it would be entirely conjectural to suppose that the jury would not have recommended the death penalty had the prosecutor omitted a reference to appellate review of death sentences. Cf. Jones v. Butler, 864 F.2d 348, 360-61 (5th Cir.1988).
The only other issue we need discuss arises from the prosecutor’s use in rebuttal in the sentencing hearing of the report of a psychiatrist who had examined the defendant to determine his sanity at the time of the trial and of the murders. The Supreme Court has held that it violates the constitutional right to the assistance of counsel to place into evidence against a defendant the result of a pretrial psychiatric examination of which the defendant’s lawyer had been unaware; and, more to the point — since Fleenor’s lawyer did know about the examination — it is likewise unconstitutional to put into evidence the result of a pretrial psychiatric examination the scope of which the lawyer was unaware of. Estelle v. Smith, 451 U.S. 454, 471, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Powell v. Texas, 492 U.S. 680, 685-86, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989) (per curiam); Satterwhite v. Texas, 486 U.S. 249, 254-55, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). A clear case would be an examination ostensibly limited to the defendant’s competence to stand trial, but used to prove that the defendant was sane when he committed his crimes, without the lawyer’s knowing it might be used in that way. If the lawyer knew, he might be able to limit the scope of the examination, or take other precautions to head off the possibility that damaging evidence would be created in the course of the examination.
This is not such a case. The prosecutor used Dr. Brown’s report to rebut the testimony of a psychiatrist that Fleenor had committed the murder as the result of a transient psychotic episode brought on by emotional stress, the implication being that he wouldn’t be a danger in the future if he were spared execution. Brown’s report indicated that Fleenor’s mental state was such as to create a continuing danger of lethal violence. This was proper rebuttal — unless the prognosis of dangerousness was so far outside the scope of Brown’s original assignment that it may have blindsided Fleenor’s lawyer.
While prognosis and diagnosis are conceptually distinct, the former often follows from the latter. If someone is diagnosed as having end-stage cancer, the prognosis of a likely early death follows. Similarly, a person diagnosed as having a permanent mental disorder can be expected to continue the pattern of behavior that led to that diagnosis. So Fleenor’s lawyer would have known that Brown’s determination of Fleenor’s mental competence would have implications for the issue of Fleenor’s future dangerousness, an issue bound to arise at the sentencing phase of a capital *1102case. In these circumstances, the use of this evidence did not circumvent the defendant’s right to counsel. See, e.g., Powell v. Texas, supra, 492 U.S. at 685 and n. 3, 109 S.Ct. 3146; Buchanan v. Kentucky, 483 U.S. 402, 424-25, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987); Savino v. Murray, 82 F.3d 593, 603-05 (4th Cir.1996).
AFFIRMED.