dissenting.
As the majority notes, I disagree with its analysis of prejudice. In my view, but for the ineffectiveness of counsel, there is a reasonable probability that the outcome of Affinito’s trial would have been different — namely, that Affinito would have been convicted of manslaughter, rather than murder.15 At the very least, our confidence in the outcome is undermined by the combined errors that plagued his trial- — -an expert who abandoned Affinito, sealing his fate, and an erroneous jury *264instruction. As such, these errors were prejudicial, the state appellate court’s determination in connection with the prejudice prong was unreasonable, and habeas relief should have been granted.
When we assess “reasonable probability,” we are of necessity hypothesizing, or speculating to a certain extent, about another likely outcome. We must imagine what alternative scenario might have played out if the claimed error had not occurred. In a situation such as this, the requisite mental state of intent and its relationship to any mental disease or defect of the defendant is admittedly an issue requiring expert testimony. The question of intent was critical here, and I cannot help but believe that the outcome would have been different if Affinito’s mental condition and history had been explained by an expert who had been properly prepared, to a jury that had been properly instructed.
The majority’s contention that there was compelling evidence from which intent could be determined is faulty. Certainly, there were Affinito’s actions — gruesome, cruel actions, which were described to the jury by Perez. But do these actions alone necessarily speak to Affinito’s state of mind at the time the crime took place? The difficulty here is that without an expert to explain otherwise, they do. And that is precisely why the woeful preparation of Ferretti, leading to his abandonment of Affinito’s major theory of defense, was so very damaging.
Several aspects of the way in which the trial played out as a result of counsel’s ineffectiveness compel the conclusion I reach. First, an expert psychiatrist in possession of all relevant documents had previously rendered an opinion stating that Affinito experienced auditory hallucinations, suffered from a major psychotic disorder, and was congenitally damaged. This raises the distinct probability that a similar opinion was obtainable (with proper preparation) and should have been offered. Moreover, Portnow’s opinion referred to previous hospitalizations and diagnoses of “major affective disorder” and “borderline psychotic disorder.” This was quite unlike the opinion of Dr. Perr, which the majority found to be comprehensive, as Perr referenced no such mental health history or previous diagnoses. In addition, counsel’s cross examination of Perr was totally inept, concentrating only on sustained drug and alcohol use as the possible root of Affinito’s problems. Absent the aid of a defense expert who could provide an opinion supporting the idea that Affinito suffered from diminished capacity, counsel was left with no other basis for attacking Perr’s conclusions or challenging his testimony.
The majority questions whether Port-now would have been effective on cross examination because the version of events outlined in the body of his report, where he describes the story as related to him by Affinito, differed from the version relayed by Perez in his testimony. But to me, any such variations between the two accounts — and especially Affinito’s recounting of hearing voices, with the “sexy” voices getting louder and louder, as described in Portnow’s report — would not cast doubt on the basis for Portnow’s opinion; rather, they would bolster the fact that, although he may not have been experiencing visual hallucinations, Affinito perceived the events differently from Perez. And, that was precisely the point of Affini-to’s diminished capacity defense.
Moreover, we should not assume, based on the fact that Portnow primarily recounts the incident as Affinito described it, that Portnow did not also take Perez’s version of the events into account. We do know from his report that Portnow — un*265like Ferretti — did review Perez’s statement to the police. If he did, then the inconsistencies in Affinito’s tale would not be problematic as far as Portnow’s opinion is concerned. Since he was already aware of the contents of Perez’s statement, Port-now would presumably state on cross examination that, while he referenced Aifini-to’s account in the body of his report, he considered the facts relayed by Perez as well when he formed his opinion. Unless Perez’s trial testimony differed dramatically from the story he told police initially, it is not a stretch to assume that Portnow would have been prepared to explain or reconcile any of the perceived inconsistencies referenced by the majority when asked about them at trial.
Further, the Superior Court completely discounted the effect of counsel’s obtaining another expert, such as Portnow, to testify. It incorrectly, and unreasonably, assumed that Portnow based his opinion on something other than a complete factual record. Such a determination is clearly unfounded, since Portnow’s report explicitly indicates that he considered all of the pertinent material.16 Having reached that incorrect conclusion, the state court unreasonably stopped short of considering how an explanation of the relevant history and diagnoses by a qualified expert would have impacted the trial. Such testimony, which I would by no means characterize as evidence that is underwhelming or remote, would have provided a basis for the jury to find that Affinito’s actions were the product of his compromised mental functioning.
The prejudice caused by the ineffectiveness of Affinito’s counsel was compounded by the trial court’s instructions to the jury, which incorrectly placed the burden of proof regarding mental state on Affinito. The trial court expounded at length — for nearly seven pages of the trial transcript— on the law of diminished capacity, repeatedly stating that it was the defendant’s burden to prove that his mental disease or defect had prevented him from forming the intent required by the murder and kidnapping statutes. In other words, the trial court instructed the jury that the defendant had to disprove the mental state elements of the crimes charged. This instruction was admittedly erroneous in light of our decision in Humanik, because it improperly relieved the prosecution of the burden of proving an element of the crime, as the Superior Court recognized. Additionally, with Ferretti’s collapse and no expert testimony supporting a diminished capacity defense, the defense had offered no proof whatsoever with regard to mental state.
Here, again, the Superior Court failed to comprehend the significance of the combined effect of these two errors. On direct appeal, the court determined that the jury instruction error was harmless. The court based this conclusion on its observation that Ferretti’s testimony, offered by the defense, had proven that Affinito had formed intent, presumably meeting the Commonwealth’s burden. Then, during the state post-conviction proceedings, the Superior Court unreasonably determined that any ineffectiveness on the part of Affinito’s trial counsel had not caused Af-finito prejudice, without considering how the proceedings on direct appeal were impacted by counsel’s incompetence. The court failed to realize that the prolonged erroneous instructions by the trial court doomed Affinito, when he had presented no expert opinion to fulfill his purported “burden” of proving mental state. Thus, *266Ferretti’s testimony not only robbed Affin-ito of a defense, it also robbed him of a seemingly ironclad argument on direct appeal based on the improper allocation of the burden of proof on this very issue!
Had a properly prepared expert testified, Affinito would have obtained a new trial based on the erroneous diminished capacity instructions that infected his first trial. And, had a proper jury instruction been given at his new trial, requiring the Commonwealth to prove that Affinito’s crime was not the result of a mental disease or defect, there is a reasonable probability that, given Portnow’s diagnosis of his mental disorder, the jury would have convicted Affinito of a lesser included offense. Thus, the error here was not clearly harmless, as the majority concludes. Since the state court’s analysis and determination regarding the ineffectiveness of Affinito’s counsel was an unreasonable application of Strickland, I submit that the writ should issue affording Affinito a new trial.
.I note that diminished capacity would only be a defense to those crimes where his mental disease or defect effectively negated the required mental state. N.J. Stat. Ann. § 2C:4-2 (2003). Here, it would appear to be a defense to crimes requiring intent or knowledge, such as murder and kidnapping, see id. §§ 2C:11-3,: 13 — 1, but it would not shield Affinito from a conviction for some form of manslaughter where the requisite mens rea is recklessness, see id. § 2C:ll-4.
. The majority concedes as much, yet curiously still defends as reasonable the state court's assumption that Portnow would have been susceptible to the same damaging cross examination as Ferretti based on his failure to explicitly reference certain facts in the body of his report.