dissenting.
Perry’s lawyer committed a fearful mistake at the trial, though not because he told the jury in his closing argument that they should convict his client of felony murder, which is second degree in Wisconsin, rather than of first-degree murder. He said this because the felony-murder charge was pat and because if convicted only of felony murder and armed robbery Perry would have been eligible for parole after 10 years, while if convicted of first-degree murder, as he was, he would be sentenced to life in prison without possibility of parole; and so he was. But, fatally, his lawyer failed to object to an instruction that, if taken seriously — and we have no reason to doubt that it was — precluded the jury from convicting Perry of felony murder and, in the circumstances, foredoomed him to be convicted of first-degree murder. For the felony-murder instruction required the jury to find, in order to convict Perry of felony murder, that he had caused the murder victim’s death. The evidence was uncontradicted that the victim was killed by another of the robbers, not Perry. The entire point of felony murder is that the felon who did not “cause” a death, in the ordinary meaning of the word, nevertheless is guilty of (a form of) murder. Perry was charged with and convicted of first-degree murder under Wisconsin’s “party to a crime” statute, which makes an aider and abettor or a conspirator liable not only for the crimes that he agreed to assist with or participate in but also for any other crime that was the “natural and probable” consequence of the crime that he aided an accomplice to commit or that he conspired to commit. Wis.Stat. § 939.05(2)(c). The party-to-a-crime and felony-murder instructions should have been integrated in *694the sense of being presented to the jury with a clear indication of the difference between the two crimes: the difference is not, as the instruction stated, that only felony murder requires proof that the defendant “caused” the death of the victim. The causation requirements of the two statutes are in fact the same. The difference is that the party-to-a-crime statute requires that the death have been a “natural and probable” consequence of the crime that the defendant conspired to commit or aided and abetted the commission of.
It is highly probable that the jury was confused by the wording of Wisconsin’s felony-murder statute, the gist of which was repeated in the instructions: “Whoever causes the death of another human being while committing or attempting to commit a crime specified in [various statutes, including the statute criminalizing armed robbery] may be imprisoned for not more than 20 years in excess of the maximum period of imprisonment provided by law for that crime or attempt.” Wis.Stat. § 940.03 (emphasis added). A layperson would not without instruction understand that “causes” in the statute and instructions is a technical term, meaning only that the defendant’s conduct “was a substantial factor in bringing about the death,” so that, for example, a defendant can be found guilty of felony murder even if the victim of the felony fired the fatal shot, e.g., State v. Oimen, 184 Wis.2d 423, 516 N.W.2d 399, 404 (1994); see also State v. Rivera, 184 Wis.2d 485, 516 N.W.2d 391, 392 (1994), because, had it not been for the felony, the occasion for the victim to defend himself would not have arisen. This should have been but was not explained to the jury. The jury was left to assume that “causes” was being used in its ordinary sense, the sense in which Perry — who neither intended the victim’s death nor did anything to bring it about — did not cause it.
Buried deep in the instructions was the statement that “before the relation of cause and effect can be found to exist, it must appear that the defendant’s act was a substantial factor in producing the death.” But “substantial factor” was not explained; and, anyway, so deep was the burial that neither the lawyers nor the judges involved in this case have ever suggested that its inclusion would have disabused the jury of the misconception that to find Perry guilty of felony murder they would have had to find that he pulled the trigger.
The decision by the Wisconsin court of appeals affirming Perry’s conviction discussed the adequacy of the instructions in only the most perfunctory manner. The district judge did a little better, saying that the fact that the defense lawyer argued in his closing argument without objection that his client should be found guilty only of felony murder, coupled with the fact that the judge did instruct the jury on felony murder, showed that the jury must have realized that it could acquit Perry of the party-to-a-crime charge and convict him of felony murder. But then the district judge contradicted himself, for after noting that the trial judge had instructed the jury not to consider the felony-murder charge unless it could not unanimously agree that Perry was guilty of the more serious charge, he said that “there is a strong presumption that juries follow the instructions they are given.” Had the jury followed the instructions as they could be expected to be understood by laypersons, and so as they undoubtedly were understood by the members of the jury, it would not have thought itself free to convict Perry of felony murder, because he was not the triggerman.
We should be realistic about the jurors. They knew from the closing arguments *695that Perry’s lawyer wanted them to convict Perry of felony murder. And it is entirely possible that in their initial discussion of the party-to-a-crime charge they were not unanimously of the opinion that he was guilty of it. But when they then in accordance with the judge’s instruction on the sequence of their consideration turned to the felony-murder charge and read the instructions, they would have thought they could not convict him of felony murder because he had not been the “cause” of the victim’s death as they would have understood “cause” to mean in the absence of explanation. At that point their choice would have been between acquitting Perry of all murder charges or convicting him of party-to-a-crime first-degree murder, and faced with that choice any initial doubters may well have swung around to agreeing to convict him of that charge after all.
Had Perry’s lawyer not told the jury that they should convict his client of felony murder, it would be arguable that his failure to object to the felony-murder instruction was tactical — that he was going for broke, hoping that the jury, if forced to choose between convicting Perry of first-degree murder and of armed robbery, would convict him only of the latter. That is not always a reasonable strategy. “The spectrum of counsel’s legitimate tactical choices does not include abandoning a chent’s only defense in the hope that a jury’s sympathy will cause them to misapply or ignore the law they have sworn to follow. By fading to tender instructions that would allow the jury to consider Barnard’s justification and denying them the option of finding him guilty of a lesser offense, trial counsel defaulted in his obligation to Barnard.” United States ex rel. Barnard v. Lane, 819 F.2d 798, 805 (7th Cir.1987). But it might have been reasonable here. Perry didn’t pull the trigger, or agree that anyone would be shot, and so he was guilty of first-degree murder, we recall, only if the jury found that the killing was the “natural and probable” consequence of the armed robbery. Wis.Stat. § 939.05(2)(c); State v. Glenn, 199 Wis.2d 575, 545 N.W.2d 230, 235-36 (1996); State v. Ivy, 119 Wis.2d 591, 350 N.W.2d 622, 626 (1984) (“proof of intent is not required for conviction of the different offense if the offense was the natural and probable consequence of the intended crime to which the defendant was a party”); Piaskowski v. Bett, 256 F.3d 687, 694 (7th Cir.2001) (“under Wisconsin law, a conspirator is responsible for any crime committed as a natural and probable consequence of the intended crime”). The jury might not have found that the murder was a natural and probable consequence of the armed robbery, and then it would have had to acquit Perry if it also though erroneously believed that he could not be guilty of felony murder because he had not “caused” the victim’s death. But the lawyer did not adopt the go-for-broke strategy. He must have believed that the jury wanted to assign some responsibility to Perry for the death. That must have been why he told the jury to convict Perry of felony murder — but in doing this without objecting to the instruction he was telling them to do the impossible.
The lawyer’s mistake in failing to object to an instruction that nullified the lesser-included instruction that he himself thought might spare his client the maximum sentence possible in Wisconsin (a state that does not have capital punishment) was gross, palpable, and, once the alternative characterization as a tactic is rejected, as it must be — for all the lawyer did was shoot his client in the foot— brought his representation of his client below the minimum standard of competence required of a criminal defendant’s lawyer. There is no argument that he *696redeemed himself by above-average advocacy in some other part of the trial.
That leaves only the question whether the mistake was prejudicial to Perry in the sense that it may well have changed the outcome of the trial. The answer is yes. A jury given a choice between finding Perry guilty of first-degree murder and finding him guilty of felony murder might well have chosen the latter course. Indeed, that possibility is inherent in the judge’s decision to instruct the jury on felony murder, since a defendant is not entitled to an instruction for which there is no support in the evidence.
The judge might have been mistaken, however; and if only a lawless jury would have acquitted Perry of first-degree murder the mistake in the instruction on felony-murder was not prejudicial in the relevant sense. Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Jones v. Jones, 163 F.3d 285, 306-07 (5th Cir.1998); Flamer v. Delaware, 68 F.3d 710, 728 (3d Cir.1995). But a finding that the death of the victim was a natural and probable consequence of the armed robbery, the finding required to condemn Perry of first-degree murder, while likely, see State v. Balistreri, 106 Wis.2d 741, 317 N.W.2d 493, 501-03 (1982); State v. Asfoor, 75 Wis.2d 411, 249 N.W.2d 529, 537-38 (1977); State v. Cydzik, 60 Wis.2d 683, 211 N.W.2d 421, 429-30 (1973), was not inevitable. It was for the jury to decide what is “natural and probable.” State v. Ivy, supra, 350 N.W.2d at 628. Only .26 of 1 percent of all robberies result in a death (Enmund v. Florida, 458 U.S. 782, 799-800 and nn. 23-24, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), says .43 of 1 percent, but was based on the 1980 Uniform Crime Reports, and my figure is based on the 2000 UCR), and since 60.6 percent of all robberies are armed robberies (same source), even if all deaths in robberies occur in armed robberies only .42 of 1 percent of such robberies (that is, 4 out of every 1,000) result in the victim’s death. The percentage would rise to .63 (6 per thousand) if all victim deaths occurred in armed robberies in which a gun was used, which are 40.9 percent of all robberies. But clearly that would be an exaggeration, since armed robberies are defined as robberies committed with a dangerous weapon. Whether .525 of 1 percent (the result of averaging .42 percent and .63 percent) — 5 in 1,000 — is high enough to make death a natural and probable consequence of armed robbery is a question on which different juries might give different answers without being thought lawless. “In order to determine whether the death was a natural and probable consequence of the robbery and whether it occurred during the robbery, it was necessary to hear evidence concerning the circumstances of the robbery.” Briggs v. State, 76 Wis.2d 313, 251 N.W.2d 12, 20 (1977); cf. State v. Pierson, 530 N.W.2d 784, 789-90 and n. 3 (Minn.1995).
One finds intimations in Wisconsin cases, and in eases in our court interpreting the party-to-a-crime statute, that the victim’s death is a natural and probable consequence of armed robbery as a matter of law. State v. Oimen, supra, 516 N.W.2d at 406-07; Wilson v. State, 59 Wis.2d 269, 208 N.W.2d 134, 143 (1973); Solles v. Israel, 868 F.2d 242, 251 (7th Cir.1989); Feela v. Israel, 727 F.2d 151, 158 (7th Cir.1984). But in Wilson the defendant was the trig-german and in Solles the triggerman had said to the defendant “Should I shoot him?” and the defendant had responded, “Only if you have to.” 868 F.2d at 244. Oimen explains that the “natural and probable” formula was adopted as a substitute for limiting felony murder to felonies that are “inherently dangerous” (see also State v. Noren, 125 Wis.2d 204, 371 N.W.2d 381, 383-84 (1985)), of which *697armed robbery is one. But the court was just explaining why the Wisconsin legislature had dropped from the felony-murder statute the “natural and probable” formula in favor of an enumeration of specific felonies, such as armed robbery, to which the statute would henceforth be limited. The court was not considering the party-to-a-crime statute. Only Feela among the cases that might be cited against Perry’s appeal is really on point, for it was a case much like this and we held that the failure to give a “natural and probable” instruction was harmless error. But Feela did not cite Briggs, which stands as the governing statement of Wisconsin law. Instead it cited cases such as Balistreri and Asfoor which hold merely that a jury is permitted — not required — to infer that the murder of a robbery victim is a natural and probable consequence of an armed robbery.
A properly instructed jury might have so found here. But as Perry had no foreknowledge that the robbery victim would be killed, and did not contribute to the death in any very obvious sense, the jury, consistent with Wisconsin law as stated in Briggs, might have acquitted him had it been given a real alternative of convicting him of felony murder. Perry’s was in fact a classic case of felony murder. The murder occurred in the course of his felony but he did not intend or perpetrate the murder. See State v. Rivera, supra; State v. Chambers, 183 Wis.2d 316, 615 N.W.2d 531, 534 and n. 4 (1994); State v. Back, 341 N.W.2d 273, 276-77 (Minn.1983); State v. Utley, 928 S.W.2d 448, 451-52 (Tenn.Crim.App.1995); Commonwealth v. DeVaughn, 221 Pa.Super. 410, 292 A.2d 444, 447 (1972). Felony murder and party-to-a-crime liability overlap and jurors familiar with the term “felony murder” from television or newspapers may have thought that Wisconsin law defines it very narrowly and that what they thought was felony murder was intended to be covered by the mysterious reference to “natural and probable” consequences in the party-to-a-crime statute. The first-degree murder instruction invited such a misunderstanding because it allowed the jury to convict Perry if he “or someone else” intended the death — while the instruction on felony murder contained no such allowance.
We must in evaluating a state prisoner’s application for federal habeas corpus defer to the state courts’ judgment if reasonable. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir.2001). The judgment that Perry received effective assistance of counsel was not reasonable, and so Perry is entitled to a new trial.