join, dissenting:
Defense counsel in this case abandoned his duty of loyalty to his client and thereby created a conflict of interest from which prejudice in the guilt phase of the trial must be presumed. I therefore disagree with Part 11(E) of the majority’s opinion and, accordingly, dissent.
As the Supreme Court of the United States reminded us recently, “there are a few situations in which prejudice may be presumed” in the analysis of an ineffective-assistance-of-counsel claim. Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). One of those situations is
when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.
Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that kind of situation, “the process loses its character as a confrontation between adversaries,” and the Sixth Amendment guarantee of the assistance of counsel is violated. United States v. Cronic, 466 U.S. 648, 656-57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Petitioner, Demetrie Ladon Mayfield, is an African American. His lawyer, S. Donald Ames, harbors deep and utter contempt for African Americans. As one of Ames’ daughters puts it:
His contempt for us [his family] was exceeded only by his contempt for peo-*940pie of other races and ethnic groups. He especially ridiculed black people, referring to them with racial invectives. He used such terms and phrases as “nigger,” “schwartze,” “jig,” “jungle bunnies,” “trigger the nigger,” and “shoot the coon to the moon.”
Ames’ former secretary states that he “consistently” referred to his African American clients as “niggers”; called another secretary “a dumb nigger”; and called a fellow lawyer “a big black nigger trying to be a white man.” Another former employee avers that Ames “said because his client [not Petitioner] was black he, Ames, did not trust him and did not care what happened to him.” An employee of the superior court says, in her affidavit, that Ames described a former secretary as a “dumb little nigger” and that he said of a minority death penalty client (not Petitioner) that “he deserves to fry.” An investigator states that Ames referred to yet another African American client as a “dumb nigger.”
The majority correctly points out that the Supreme Court has not held that racial prejudice against a client is a cognizable form of conflict of interest. (Maj. op. at 924.) It also is true that a criminal defendant is not entitled to have a particular lawyer, or even a lawyer with whom the defendant feels rapport. Morris v. Sloppy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). But a capital defendant is entitled to the assistance of a lawyer who actually maintains a duty of loyalty to him or her. The Supreme Court has called “the duty of loyalty, perhaps the most basic of counsel’s duties.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052. There is no principled reason why any factor, extraneous to the case, which causes a lawyer to abandon altogether “the duty of loyalty” cannot qualify as a factor that undermines a defendant’s Sixth Amendment right to the assistance of counsel.
“A defense attorney who abandons his duty of loyalty to his client and effectively joins the state in an effort to attain a conviction or death sentence suffers from an obvious conflict of interest. Such an attorney, like unwanted counsel, ‘represents’ the defendant only through a tenuous and unacceptable legal fiction.’” Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In fact, an attorney who is burdened by a conflict between his client’s interests and his own sympathies to the prosecution’s position is considerably worse than an attorney with loyalty to other defendants, because the interests of the state and the defendant are necessarily in opposition.”
United States v. Swanson, 943 F.2d 1070, 1075 (9th Cir.1991) (quoting Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir. 1988)).
Here, Ames made his sympathies to the prosecution’s position manifest not only by what he failed to do, but also by what he did do. What he failed to do was prepare or investigate, having spent only 40 hours to get ready for the guilt and penalty phases of a capital trial. According to the district court, “Ames’s trial notebook contained no handwritten notes, no legal research, and no handwritten indications of out-of-court preparation.” Mayfield v. Calderon, No. CV 94-6011 ER, 1997 WL 778685, at *3 (C.D.Cal. Oct.27, 1997). Ames failed to hire associate counsel, although he had the right to do so. He used only about $1,000 of the $7,500 budget for an investigator; much of that represented activities other than actual investigation. (Maj. op. at 927.) Ames did not interview Petitioner until the morning of trial, when they met at the courthouse. Although the trial judge “wanted to settle the case by *941having [Petitioner plead guilty for a sentence of life without parole[,] Ames did not discuss possible defenses with [Petitioner” and proceeded to trial. 1997 WL 778685, at *4.
If the record stopped there, I might agree with the majority that Ames’ antipathy to African Americans could not necessarily be linked with his incompetent performance. (Maj. op. at 925.) But Ames did much more than serve his client indifferently; he actively served the interests of the prosecution. On this record, there is no other explanation than a racially motivated breach of the duty of loyalty to Petitioner and concomitant sympathy to the prosecution’s position.
At the guilt phase of the trial, the prosecutor introduced Petitioner’s videotaped confession and re-enactment of the crime, as well as an excerpt of his audiotaped confession. In both, Petitioner consistently maintained that he intended to confront and scare Ora Mae Pope but had killed her by accident when she lurched forward to get a cigarette. Had the jury held a reasonable doubt, based on that account, that the killing of Ms. Pope was first-degree murder, then Petitioner would not have been eligible for the death penalty.
Ames made no opening statement to point this out to the jury. The only evidence that he introduced affirmatively during the defense case was the full audiotape of the police interview with Petitioner. That evidence irreparably damaged Petitioner and significantly helped the state. In the tape that Ames played for the jury, Petitioner at first insistently denied any involvement in the crime. In other words, in a case that depended entirely on the jury’s believing Petitioner when he said that the first killing was accidental, Petitioner’s own lawyer introduced evidence proving that Petitioner had lied. Moreover, as the majority notes, p. 925, the tape needlessly revealed other damning admissions, such as Petitioner’s acknowledgments that he put Ms. Pope into the storage closet while she was still alive; that he had been in fights; that he had received probation for firing a gun inside city limits; and that he possessed a “short temper.” Nor did Ames present a favorable closing argument. For example, Ames reminded the jury that his client denied any involvement in the killings “until page 88” of the transcript, when he finally confessed after being confronted with evidence against him. He also reminded the jury that Petitioner had admitted to involuntary manslaughter of Ms. Pope — “at the very least” — -and to “at least a first or second degree murder” of the other victim. And he mused about why Petitioner might have brought two shells with him if he did not premeditate the murders — another argument for the prosecution.
I cannot fault the majority’s analysis concerning lack of prejudice at the guilt phase. But this is one of the rare cases in which “defense” counsel’s sympathies so obviously and cynically belonged to the prosecution that Petitioner received the equivalent of no counsel at all.
I have no hesitation in upholding a capital conviction. See, e.g., Lambright v. Stewart, 191 F.3d 1181 (9th Cir.1999) (en banc); State v. Moore, 324 Or. 396, 927 P.2d 1073 (1996) (en banc); State v. Montez, 324 Or. 343, 927 P.2d 64 (1996) (en banc); Wright v. Thompson, 324 Or. 153, 922 P.2d 1224 (1996) (en banc); Bryant v. Thompson, 324 Or. 141, 922 P.2d 1219 (1996) (en banc); State v. Wright, 323 Or. 8, 913 P.2d 321 (1996) (en banc); State v. Guzek, 322 Or. 245, 906 P.2d 272 (1995) (en banc) (Graber, J., dissenting); State v. Pinnell, 319 Or. 438, 877 P.2d 635 (1994) (en banc); State v. Smith, 319 Or. 37, 872 P.2d 966 (1994); State v. Johnson, 313 Or. *942189, 882 P.2d 443 (1992) (en banc) (Graber, J., dissenting). But in every case in which I have done so, the defendant had counsel who represented his interests. In, conscience, I cannot uphold a conviction that results from a trial in which both the defendant’s lawyer and the prosecutor represented the interests of the state.
I respectfully dissent.