concurring and dissenting:
I agree with the rejection of most of Smith’s claims, but dissent from the grant of habeas corpus regarding his sentence.
Almost twenty-four years ago, Smith committed two crimes of unspeakable cruelty and brutality. I detail some of Smith’s background and the facts of those crimes here because, though very briefly alluded to by the majority, a fuller description will reify the nightmare that counsel had to address when he was called upon to plead for Smith’s life. We must understand that counsel was not faced with a mere legal abstraction. Neither were Smith’s unfortunate victims.
By early 1975, Smith, who was then twenty-five years old, was already on probation for two first degree rapes. The leniency with which he had been treated for those 1973 convictions allowed him to continue to pursue his nefarious career. He began what would come to be a notorious series of desert rapes of female hitchhikers in the Phoenix area. In February 1975, Smith raped and sodomized a pregnant woman to whom he had offered a ride. See State v. Smith, 116 Ariz. 387, 389, 569 P.2d 817, 819 (1977). In July, Smith and a companion kidnapped, raped and viciously stabbed a fifteen-year-old girl, who was hitchhiking. See State v. Smith, 123 Ariz. 243, 246, 599 P.2d 199, 202 (1979). Those two incidents prefaced the subsequent murderous attacks which are the subject of this case.
In December of 1975, Smith took eighteen-year-old Sandy Spencer into the desert. There he stripped her and killed her by forcing dirt into her mouth and nose, which resulted in her death by asphyxiation due to the obstruction of her breathing passages. Not being satisfied with that cruelty, he also stabbed her 19 to 20 times in the groin and pelvic area, including inside her vagina. In addition, he stabbed her in both breasts and left a two and half inch sewing needle imbedded in her left breast and chest wall. All of these wounds were inflicted while she was still alive. Sadly enough, that did not satiate his appetites.
A month or less later, Smith picked up fourteen-year-old Neva Lee. She, too, was carried off to the desert, where Smith raped her and then murdered her by the same methods he had used on Sandy Spencer. He forced dirt into her mouth, larynx and trachea, down into her windpipe and both lungs. He also taped her mouth shut. She, too, died of asphyxiation. Again, Smith saw fit to inflict still further suffering upon her. She was stabbed at the left side of her vulva, and sustained tears in her vulva and vagina, all prior to her death. She had been bound *1015hand and foot and had been stabbed in the breasts with something like a sewing needle. She also had numerous other bruises and wounds on her body, some inflicted before she died, and some at about the time she died or thereafter.
Those were the facts about Smith’s actions that counsel had to grapple with. After Smith had been convicted of Neva Lee’s murder, he pled guilty to Sandy Spencer’s murder in the midst of his trial for that crime. He was then sentenced to death for those murders, but counsel obtained a new sentencing hearing for him at which counsel was told that he could place “any mitigating circumstance” before the sentencing court. See State v. Smith, 123 Ariz. 231, 243, 599 P.2d 187, 199 (1979). Counsel was not sure just what evidence could be considered mitigating. Given the constellation of facts with which he was faced, that is understandable.1
What his client had done was surely egregious. But what of Smith’s background? Well, Smith insisted that his childhood (always a favorite source of mitigating evidence) had been normal. He had been raised by his natural parents, had no real conflicts with them, and grew up with them and his sister. Indeed, he was close to his mother and father and could not recall any significant difficulties or any particularly traumatic event. There was no history of psychiatric problems or drug or alcohol abuse in his family. Smith was popular in school, and graduated from high school, after which he attended college. His father was a machinist, and Smith worked at his father’s shop during the relevant time. (It was there, by the way, that he tried to put upon a female undercover police officer, which ultimately brought his murderous career to an end.) There was not much mitigation there one would think. What to do?
Largely at counsel’s request, Smith had been examined by no less than six mental health professionals, psychiatrists all. None of them found any mental impairment severe enough to have affected Smith’s ability to participate in court proceedings, and to assist counsel. More than that, none thought that Smith was incapable of appreciating the nature and quality of the offenses when he committed them, and one psychiatrist opined that Smith was not suffering from any mental illness or defect at the time. Be that as it may, counsel made the sentencing judge aware of Dr. Hoogerbeets’ opinion that Smith was mentally disturbed, “ ‘a border-type psychotic person, with an abnormal psycho-sexual development, very strong neurotic traits, which drives him to compulsory aberrant actions. Unfortunately, often highly deviant and violent in nature.’ ” State v. Smith, 131 Ariz. 29, 32, 638 P.2d 696, 699 (1981). Another psychiatrist, Dr. Goldberg, opined that Smith was a sadistic sexual slayer who is possibly psychotic and who had poor ego control along with, perhaps, compulsive behavior “over which [he had] little control.” Id. at 32-33, 638 P.2d at 699-700. If a judge were inclined to find mitigating circumstances, that testimony, if believed, would surely have led to a conclusion that there was some mitigation. See id.; see also, id. at 35, 638 P.2d at 702. There was psychiatric evidence on the other side which the Arizona Supreme Court ultimately accepted, but that is not the point of this discussion. The point is that the possibly mitigating psychiatric evidence was known to counsel, and was placed before the Arizona courts by him. Not satisfied with that, counsel asked for still another psychiatric expert; that was denied.
What else might there be? There was his behavior in jail and in prison. That *1016can be a factor, but the information was before the sentencing court, as counsel and the court knew.
In the face of all of that, counsel did still argue for his client’s life and did attack the Arizona death penalty statute itself. Moreover, he appealed when he lost, and he argued for his client’s life in the Arizona Supreme Court. But counsel did not do further investigation. That was because he had a failure of imagination, or of legal acumen, or both. Had he investigated, what, after all of these years, has been discovered that would mitigate the powerful aggravating circumstances arrayed against Smith? The district court was told that two lay witnesses would have indicated that Smith seemed to have multiple personalities,2 and one lay witness would say that Smith had wide mood swings. Of course, none of the mental health professionals had detected multiple personalities. I am highly dubious about dubbing the failure to discover this asthenic mitigating evidence as being so far outside the range of the competence we expect from attorneys that counsel “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
But let us take counsel at his word. Let us agree with him that his confusion, lack of acumen, lack of imagination, even ennui in this death penalty case was outside the range of tolerable attorney behavior. Let us say, in other words, that because it was not simply tactics that kept him from presenting the additional information, his behavior was not reasonable. Cf. Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir.1995). Smith must still show that he was prejudiced. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. That is, he must show that the result of his sentencing is not reliable. Id. He must demonstrate “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. He must show that, ultimately, there was a reasonable probability that the Arizona Supreme Court “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069.
Can Smith meet the Strickland prejudice standard? I think not. I am, of course, cognizant of the difficulties presented by prejudice assessment in a case where we must ask ourselves what effect further evidence would have had on the sentencing judges. See Smith v. Stewart, 140 F.3d 1263, 1270-71 (9th Cir.1998) (Bernard Smith). But Smith was no mine-run killer. We cannot say, as we have said before, that “while the facts of this case are bad enough to disturb even a jaded observer, they do not reach the level of those in cases where the aggravating facts were so overwhelmingly horrifying that it was highly improbable that mitigating factors of any ordinary stripe would help.” Bernard Smith, 140 F.3d at 1271. This was the kind of case that cried out for powerful mitigation, if Smith’s life was to be saved. This is the kind of case about which we have said that the defendant “sentenced himself to death,” and that “no plea for mercy or leniency on [his] behalf, indeed no oral argument on his behalf, could have altered what [he] himself set in motion.” Gerlaugh v. Stewart, 129 F.3d 1027, 1042 (9th Cir.1997). Counsel’s sentencing failures did not prejudice Smith.
If we take off our legal lenses for a moment and step back to look at this record and at what Smith did to his unfortunate victims, the decision to return this case for resentencing almost takes one’s breath away, if, indeed, it is not too incongruous to say that anything touching a process as slow as that which exists in this country3 can ever be called breathtaking. *1017And even with our glasses back in place, the thought that some lay opinion about a split personality would have caused the trial court to flinch from awarding Smith the death penalty does startle one. With all due respect, legal lenses should not be blinders.
Therefore, I respectfully dissent from the grant of habeas corpus on the sentencing claim, although I concur in the rejection of the other claims.
. Counsel asked the learned trial judge for guidance. Perhaps the judge was just as puzzled, or perhaps he had the wisdom not to say anything that might limit the possibilities. At any rate, he said "I would suggest that you present anything you, in your opinion or imagination, feel is mitigating circumstance.” Had the judge been much more specific or detailed, he might have been accused later of having inhibited or misled the defense. See, e.g., Wilson v. United States District Court (Siripongs), 161 F.3d 1185, 1186-87 (9th Cir.1998).
. Interestingly enough, one of those supposed "personalities” was named John Jameson, which just happened to be the name of the prosecution’s witness who Smith said committed the Lee murder. Smith had been dating Jameson's estranged wife.
. Twenty-three years and counting in this case.