concurring in part and dissenting in part.
Although I agree with the majority’s view that constitutional error requires a remand in this case for a new sentencing hearing, I cannot agree with its conclusion that the same error is harmless in connection with the jury’s determination of the defendant’s guilt.
There can be no question that entrenched principles of due process require greater protections for indigent capital defendants suffering from mental defect or disease than the limited assistance allowed Powell in his trial. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court confirmed that a defendant’s indigency cannot constitutionally result in a lesser standard of justice than that accorded to defendants of greater financial means. As noted in Ake:
This Court has long recognized that when a.State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fan-opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
Id. at 76,105 S.Ct. 1087.
After confirming the essential role fulfilled in many criminal trials by expert psychological testimony, the Court then explicitly held:
[Wjhen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
Id. at 83, 105 S.Ct. 1087 (emphasis added). Based on the record before us, it is obvious that in their decisions, the Ohio courts and the district court have misapplied Ake in this case.
The Supreme Court was explicit in Ake and in other, prior decisions that due process mandates provision of the “basic tools of an adequate defense” to indigent defendants. See, e.g., Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). The duty of a trial court thus involves determining “whether, and under what conditions,” requested expert assistance must be offered. See Ake, 470 U.S. at 77, 105 S.Ct. 1087. In doing so, courts should examine three essential factors:
The first is the private interest that will be affected by the action of the State. The second’ is the governmental interest that will be affected if the safeguard is *403to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.
Id.
Clearly, in a death penalty proceeding, the private interest in receiving all assistance necessary for a sound defense far outweighs any governmental interest in cost savings, quicker trials, or other matters important to the relevant governmental body. The focus is thus upon the value of the additional, requested safeguards to the quest for justice. Citing Terry v. Rees, 985 F.2d 283, 284 (6th Cir.1993), the district court noted that this court has expanded the Ake holding beyond those cases in which sanity is a significant factor at trial by concluding that the defendant in Terry “was deprived of the opportunity to present an effective defense when he was denied an independent pathologist in order to challenge the government’s position as to the victim’s cause of death.” Id. The court in Terry also recited the Ake principle that “[c]riminal trials are fundamentally unfair if a state proceeds against an indigent defendant without making certain that he has access to the raw materials integral to building a defense,” id., and stated broadly (and correctly) that “[f|un-damental fairness entitles an indigent defendant to an adequate opportunity to present his claims fairly within the adversary system.” Id.
Applying these constitutional principles and the law of the circuit, the district court noted “that the Fourteenth Amendment’s due process guarantee of fundamental fairness may require the State to provide expert assistance to a criminal defendant in cases other than those where the defendant’s sanity is in issue.” Nevertheless, in this matter, the district court determined that Powell was not entitled to the assistance of a psychiatric or psychological expert because, “although petitioner’s mental condition was seriously in issue in this case, Dr. Schmidtgoessling adequately fulfilled the role of a defense expert.” The majority on appeal has recognized the error in this ruling, but holds that the error is harmless. I cannot agree.
Without question, an indigent criminal defendant has no constitutional right “to choose a psychiatrist of his personal liking or to receive funds to hire his own.” Id. Such a defendant, however, must have at least access to “a competent psychiatrist for the purpose ... discussed [by the Supreme Court in Ake.]” Id. In this matter, the Ohio state courts and the federal district court concluded that Powell’s constitutional rights were adequately protected because the petitioner had “access” to Dr. Schmidtgoessling and to her reports. Despite the fact that Powell’s attorneys were forced to call Schmidtgoessling as their own witness, however, the mental health professional appointed to evaluate Powell as a “friend of the court” did not, and indeed could not, fulfill the function demanded of her by the due process provisions of the federal constitution.
Schmidtgoessling did offer testimony that was at least in part beneficial to the petitioner. Moreover, Powell’s attorneys, without question, were afforded access to Schmidtgoessling and to the reports she prepared for the court. What Powell and his defense team was not allowed, however, was a very integral part of the very protection discussed in Ake — the expert assistance necessary to “assist in evaluation, preparation, and presentation of a defense.” Id. at 83, 105 S.Ct. 1087. As explained by the Supreme Court:
[W]ithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help *404determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.
Id. at 82, 105 S.Ct. 1087.
The majority concludes that the trial court’s error in failing to appoint an independent expert to assist defense counsel in this case was harmless because the “Petitioner’s own admissions provide the basis for a jury to find that he was capable of performing purposeful acts, and that he in fact committed the acts which led to Trina’s death.” While there can be no fault found with the ultimate conclusion — that the petitioner did indeed cause Trina’s death — the fact that he appeared to act “purposefully” begs the ultimate question in this case. Neither the petitioner’s acts at the time of the offense, nor his statements immediately afterward, can be taken as conclusive of his ability to control his actions. Obviously, without the assistance of an expert, the petitioner was hamstrung in his efforts to challenge any of the conclusions reached by the “friend of the court.” Furthermore, as revealed during the post-conviction proceedings in this matter, Dr. James Tanley, a mental health expert whose services Powell was finally able to obtain, did conclude that Powell suffered from organic brain damage and that the damage, together with the defendant’s low IQ and other factors, compromised Powell’s ability to think cognitively, such that the defendant might not have been able to conform his conduct to the requirements of the law at the time of the crime. Consequently, the validity of the petitioner’s conviction stands questioned as a result of the trial court’s refusal to allow the defendant constitutionally-mandated assistance in the preparation of his defense. I fail to see how this deprivation can be considered harmless under all the circumstances of this case.1
It is not only the access to test results that Ake requires; if such access were the extent of the due process protections afforded indigent criminals whose sanity and mental culpability at the time of the crime are called into question, lawyers untrained in psychology and psychiatry could be flooded with data and opinion with no legitimate opportunity to understand, *405question, or dispute the material. Instead, the clear language of Ake provides that basic principles of due process and justice require that defendants presented with such information must also be provided assistance in neutrally evaluating the disclosures and preparing, if possible, an adequate defense to the findings. Significantly, that possibility was not afforded the petitioner at trial. Again, I cannot see that such an error can be considered harmless.
For these reasons, I would reverse the district court’s judgment in its entirety and remand for issuance of a writ that 9 * would mandate a new trial for the petitioner, as well as a new sentencing proceeding. In the absence of such an order by this court, I respectfully dissent.
SUPPLEMENTAL ORDER
June 17, 2003.
GILMAN, Circuit Judge.Following the issuance of this court’s opinion, found at 328 F.3d 268 (6th Cir. 2003), Tony M. Powell filed a petition to rehear. His petition was based on the concern that the concluding paragraph of our opinion could be interpreted as foreclosing his right to argue in the state courts of Ohio that § 2929.06 of the Ohio Revised Code, enacted in 1996, is not retroactive to his conviction in 1987. We recognize that this is still an open question under Ohio law. State v. Gross, 97 Ohio St.3d 121, 776 N.E.2d 1061, 1114-16 (Ohio 2002) (Resnick, J., concurring in part and dissenting in part).
Powell’s right to argue this issue of state law in the Ohio courts is not foreclosed by our opinion. To remove any doubt on this point, however, we amend our opinion by striking the concluding paragraph in its entirety and substituting the following in lieu thereof:
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s denial of Petitioner’s application for a writ of ha-beas corpus as to the penalty phase and AFFIRM as to the guilt phase of Petitioner’s trial; and we REMAND to the district court with instructions to issue a writ of habeas corpus vacating Petitioner’s death sentence unless the State of Ohio initiates a new penalty phase proceeding within 180 days of remand. If the State does elect to initiate such a proceeding, we presume that the state court will first have to determine (1) whether § 2929.06 of the Ohio Revised Code is retroactive, and (2) whether Petitioner can be lawfully executed under the Eighth Amendment due to his mental retardation in light of the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Only if the state court resolves both issues in the state’s favor would the prosecution be free to conduct a new penalty phase proceeding if it chooses to do so.
As a final conforming change, we also amend our opinion by substituting the word “initiates” for “conducts” in the last sentence of the second paragraph. That sentence is now amended to read as follows:
Accordingly, we REVERSE the district court’s denial of the writ on these bases, and we REMAND to the district court with instructions to issue a writ of habe-as corpus vacating Powell’s death sentence unless the State of Ohio initiates a new penalty proceeding within 180 days of remand.
In light of the foregoing amendments, we find no reason to have this case re*406heard. Powell’s petition to rehear is therefore DENIED.
. With what I consider to be unwarranted certitude, the majority attempts to bolster its conclusion that this denial of fundamental due process is nevertheless harmless by asserting that “Dr. Tanley’s testimony that Petitioner 'had significant difficulty ... conforming his conduct to the requirements of the law' falls short of Ohio’s standard for insanity applicable at the time of Trina’s murder; namely, whether Petitioner lacked the capacity to conform his conduct to the requirements of the law.” In so doing, the majority imposes upon spontaneous testimony a requirement of legal precision that might well obscure the true meaning of the opinion offered. The relevant colloquy with Dr. Tanley included, in fuller exposition, the following exchange:
Q. Do you have an opinion based upon a reasonable degree of neuropsychological or scientific certainty as to whether at the time of the offense Mr. Powell because of a mental disease or defect lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law?
A. Yes, I do.
Q. Could you tell the Court what that opinion is?
A. My opinion Mr. Powell had significant difficulty with the second part of that statement, that is conforming his conduct to the requirements of the law.
The majority's argument that, in such a context, the concepts of "lack of capacity” and "significant difficulty” can never be construed synonymously is, in my judgment, disingenuous. Instead, I would hold that the possibility that Powell's "significant difficulty” in conforming his conduct to legal requirements was, in fact, his lack of capacity to do so, creates at least a "grave doubt” as to the harmlessness of the error.