dissenting.
The majority opinion slants and misconceives relevant facts and law in this case on each of the three major issues in order to uphold the death penalty. I will try to straighten out the case for the reader by introducing the actual facts and the correct legal principles to be applied. This is not a close case.
The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and .psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best— indeed, her only — defense. Before trial, her counsel told the trial court that in his opinion: “This case has a meritorious defense in the battered-wife syndrome.” (App.120.) The Memphis district attorneys obviously knew that this was the defense theory. But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife. I will discuss the Memphis prosecutor’s cover-up of exculpatory evidence first, then defense counsel’s failure to investigate and develop the defense, and finally the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.
I. The State Withheld Crucial Exculpatory Evidence of Mr. Owens’ Infidelities
Prior to trial, Mrs. Owens requested that the state prosecutor provide the defense with all information in its possession that her husband “had numerous girlfriends, extra-marital sexual affairs involving unusual sexual proclivities and/or perversions” because “these proclivities, perversions and affairs were flaunted and visited upon defendant with such regularity and in such ways as to contribute to [her] state of mind and mental condition .... ” (App.101.)1 The prosecution had *425found sexually explicit love letters between Mr. Owens and one of his girlfriends, Gayla Scott. In the love letters, the two called each other “fluff licker” and “lollipop,” a clear reference to numerous oral sexual experiences between Ryan Owens and Gayla Scott. (App.412^413.) The detectives had written up their discovery of the love letters in a contemporaneous report describing them to the prosecution. The prosecution covered up the love letters while lying to the trial court and to opposing counsel in the following language: “To the best of my knowledge we have shown them every single scintilla of evidence which we seized and which we have that came from the house. Anything that is in the possession of any law enforcement agency we have shown to counsel for the defense.” The prosecutor went on to further the cover-up by saying to the trial court and Mrs. Owens that “everything we have in the way of any kind of physical evidence, any piece of paper, any notebook' — anything along those lines, letters and etc. that we have, we have made available to them.” (App.111-115.) This set of falsehoods is typical of the conduct of the Memphis district attorney’s office during this period. See Cone v. Bell, 492 F.3d 743, 759 (6th Cir.2007) (Merritt, J., dissenting), cert. granted, - U.S. -, 128 S.Ct. 2961, 171 L.Ed.2d 883, 76 U.S.L.W. 3484 (2008).
To the obvious prosecutorial falsehoods in this case, the majority opinion can only lamely answer that Mrs. Owens already knew that her husband, Ron Owens, was having affairs so that any documents and letters would not have been favorable or prejudicial because she herself could have testified to those facts herself. The majority argues that if a defendant has knowledge of any fact, or a reasonable suspicion of a fact, the defendant is not entitled to exculpatory evidence regarding that fact because she could testify regarding that fact herself. (My colleagues state their proposed rule as follows: “Owens knew of the affair, and if she wanted to present evidence of the affair, she could have testified .... She loses because the proof she needed was available elsewhere.” Opinion, p. 417.) The majority’s proposed rule is nonsense. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the defendant, Brady, had knowledge that he did not kill the victim, but had no documentary evidence to support that knowledge or to support his view of the identity of the real culprit. Under the theory of the majority in the instant case, Brady was not entitled to any documentary evidence in the hands of the prosecution that would support any knowledge that Brady already had. Instead, according to the rule announced by my colleagues, Brady should have taken the stand and testified about his knowledge or put the real culprit on the stand and examined him. This argument is directly contrary to the Supreme Court’s holding in Brady. The Court specifically held that Brady’s knowledge that his co-defendant committed the crime obviously did not satisfy the prosecution’s responsibility to provide specific information that it had regarding the co-defendant’s guilt. Id. at 87, 83 S.Ct. 1194.
The prosecution offered Owens life imprisonment (conditioned on the guilty plea of her confederate) because the killing under these mitigating circumstances — circumstances the jury never heard about at all — made her less culpable. The jury never heard the evidence in the hands of *426the prosecution that made her less culpable because the prosecution consciously and deliberately covered it up. And now my colleagues say “fine, no problem, she should have taken the stand.”
Rather than tell the jury the truth about the matter, the prosecution told the jury that she killed her husband to get “insurance money.” (App.151-51.) On this issue, Owens’ post-conviction counsel concludes in her reply brief:
The prosecution’s theory, however, would have held no sway had the prosecution complied with its constitutional obligations to disclose the letters between Gala Scott to Ronald Owens. Indeed, had the jury held in their hands the exculpatory pile of letters from Gala Scott, the jury would have seen the circumstances of the offense in a very different light. The jurors would have actually understood the “cruelty” which Gaile Owens said she endured, they would have been sickened by the whole ordeal, and they would have understood the real truth behind what happened to Ronald Owens. With the actual production of the letters, and with those letters being sent back to the jury room, reasonable jurors would have returned the very sentence which the prosecution said was appropriate for Gaile Owens: Life.
(Appellee’s Reply Br. 8-9.) This may or may not have been the result of the trial in Memphis, but it is certainly true that the blatant prosecutorial misconduct suppressing the love letters was highly material and prejudicial at the mitigation phase of the trial. To claim otherwise is to deny the obvious. Note that my colleagues cannot deny that the abused-wife defense was her best defense or that her lawyer offered no proof along this line — in part because the prosecutor covered it up but also because her lawyer did not do his job.
II. Ineffective Assistance of Counsel
My colleagues’ proposed disposition of Owens’ ineffective assistance of counsel claim is also slanted in favor of the State both as to the facts and the law. Their proposed rule, stated in italics on page 15, is that notwithstanding Owens’ strong case of spousal abuse, her ineffective assistance claim based on counsel’s failure to investigate and develop the defense fails “because Owens’ counsel wanted to present the substance of such evidence directly at trial, through the testimony of Owens and her family.” In other words, my colleagues postulate when she told her lawyers she did not want to testify herself, they were justified in completely abandoning her domestic violence and spousal abuse claim — the claim they had earlier told the court was a “meritorious defense.” The complete abandonment of that defense left the jury only with the prosecutor’s theory that her motive for killing her husband was the “insurance money.”
In a long series of cases, the Supreme Court, the Sixth Circuit, and other circuits have held that in order to comply with the Sixth Amendment, defense counsel in capital cases must at least meet the American Bar Association Guidelines For The Appointment and Performance of Defense Counsel in Death Penalty Cases.2 Those *427Guidelines clearly state that defense counsel must fully investigate all mitigating circumstances, even when the defendant does not want to take the stand or is not forthcoming. Section 10.7 on “Investigation” instructs counsel as follows:
Guideline 10.7 Investigation
A. Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.
1. The investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented.
2. The investigation regarding penalty should be conducted regardless of any statement by the client that evidence bearing upon penalty is not to be collected or presented.
Penalty
Counsel’s duty to investigate and present mitigating evidence is now well established. The duty to investigate exists regardless of the expressed desires of a client. Nor may counsel “sit idly by, thinking that investigation would be futile. ” Counsel cannot responsibly advise a client about the merits of different courses of action, the client cannot make informed decisions, and counsel cannot be sure of the client’s competency to make such decisions, unless counsel has first conducted a thorough investigation with respect to both phases of the case.
(Emphasis added.)
The Sixth Amendment requires a comprehensive investigation, as the cases discussed in footnote 2 explain. My colleagues’ singular reliance on Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), for the proposition that counsel could completely abandon investigating and using domestic violence and psychological abuse as “a meritorious defense” demonstrates the majority’s effort to alter the governing standard in order to affirm the death penalty. In Schriro the Supreme Court found that the defendant specifically instructed counsel “not to present any mitigating evidence,” id. at 1941, and thus distinguished Wiggins v. Smith and Rompilla v. Beard. The Supreme Court distinguished Wiggins and Rompilla only on the ground that in those *428cases “the defendant refused to assist in the development of a mitigation case, but did not inform the court [as in Schriro] that he did not want mitigating evidence presented.” In Gaile Owens’ case she did not even refuse to cooperate, much less instruct counsel not to put on mitigating evidence. My colleagues cannot legitimately hide behind the Schriro case and use it to construct a rule that counsel can abandon any investigation and development of spousal abuse when the defendant is reticent to take the stand.
Defense counsel’s time sheets and his certified representation to the state court showed that counsel abandoned the investigation of the defense — spending a total of only two hours of investigation in preparation for the mitigation or sentencing phase of Mrs. Owens’ case. The majority speculation that these statements of defense counsel to the court were false is ludicrous. Counsel was required by law to “certify that the foregoing [two hours of time] represents an accurate and complete statement of time and expense in connection with the above action.” (App.251-59.) The majority’s assumption that counsel lied to the court in a written certification and in fact spent long hours of investigation for the sentencing hearing is inexplicable. Counsel had no incentive to falsify his investigation and every reason to tell the truth. His pay depended upon the hours of investigation spent, and his integrity and honesty depended upon his telling the truth.
Had counsel performed a full and complete investigation as required by the ABA standard quoted above and adopted by the Supreme Court, here is the evidence that counsel would have found and could have presented to the jury:
Ron Owens was abusive toward Ms. Owens. He subjected her to physical, emotional, and sexual abuse beginning with their wedding night when he was forceful and impatient, demanding sex immediately upon entering their hotel room. When Ms. Owens revealed to her new husband that she was in great pain and bleeding profusely, he called her frigid, and angrily left the hotel room stating that “If you won’t, I know where I can find someone who will.” R. 17, Addendum 12: PCR, Vol. 7, Ex. R, pp. 9-10; Apx. pp. 340-341.
Ron Owens inserted large objects into Ms. Owens’s vagina and rectum, causing her pain and bleeding. At one point, Mr. Owens inserted a wine bottle into Ms. Owens’s vagina and manipulated it with such vigor that it broke inside her. Id., Ex. R., p. 10; Apx. p. 341. Mr. Owens also used a penis-shaped marijuana pipe to penetrate Ms. Owens’s vagina which caused her pain and humiliation. Id., Ex. R., p. 10; Apx. p. 341.
Ron Owens’s sexually abusive behavior not only placed Ms. Owens at risk, but also risked the life of their unborn son. The night before the birth of her second son, Ron Owens forced Ms. Owens to engage in such brutal sexual intercourse that Ms. Owens’s placenta partially detached, requiring an emergency C-section to save Ms. Owens and her son. Id., Ex. R. p. 14; Apx. p. 345; Id., Ex. 1, p. 32; Apx. p. 285.
Ron Owens not only sexually abused Ms. Owens, but was also emotionally abusive toward her. Upon the birth of her children, Mr. Owens accused Ms. Owens of not taking properly her birth control pills and complained that the children would be an unbearable financial burden. Id., Ex. R, pp. 13-14; Apx. pp. 344-345. In addition, Mr. Owens regularly berated Ms. Owens telling her, among other things, that “she did not *429sweat much for a fat person.” Id., Ex. R, pp. 10-11; Apx. pp. 341-342.
Ron Owens was also deceitful and unfaithful to Ms. Owens. Mr. Owens had lied to Ms. Owens and to others about his background, falsely claiming that he volunteered to serve as a medic in Vietnam, and that he was shot twice and contacted Malaria while in Vietnam. Id., Ex. R., pp. 11-12; Apx. pp. 342-343; Id., Ex. N; Apx. p. 293; Id., Ex. Q; Apx. p. 328. Moreover, Mr. Owens had lied about his credentials on a job application at Baptist Hospital, stating that he had a B.S. degree when he did not. Id., Ex. R, p. 12; Apx. p. 343; Id., Ex. O; Apx. p. 311.
(Final Brief of Appellant filed August 3, 2007, 11-13.) The incompetence of defense counsel in this case is well illustrated by Mr. Marty’s post-trial excuse that he thought investigating and showing spousal abuse would have made the jury more likely to favor capital punishment. He testified:
Q. Mr. Marty, going back to an earlier question concerning, for instance, the report by K.D. Wray concerning the verification of an affair, sexual affair with Ron Owens, do you think that would have been important knowledge for you to have in this case?
A. It may or may not have been. It may have given her a motive to kill him. Q. Do you think it might have been useful in sentencing, perhaps, to give the jury a reason not to kill her?
A. It may have given them [the jury] a stronger reason to kill her.
(Emphasis added.) Post-conviction counsel’s answer to Marty’s excuse for abandoning the investigation and offering no proof of domestic abuse is unanswerable:
[T]his killing was not worthy of the death penalty. That is the reason why the prosecution offered Gaile Owens a life sentence in the first place: A woman who kills her husband because of an affair is less culpable than other murderers. In fact, case law is replete with circumstances in which the unfaithfulness of a spouse — even if not providing a legal justification for the killing — has reduced the killing to something less than a death penalty case.2 One can easily understand how a woman who has been cheated on, beaten, and emotionally and/or sexually abused might kill her husband and why life in prison- — not death — is the appropriate sentence under the circumstances.3
(Final reply Brief of Appellant filed August 7, 2007, 6-7.)
To make matters even worse, Mrs. Owens’ appointed counsel each thought the other was responsible for conducting the *430sentencing hearing; consequently, neither prepared for it. (App.387, 411.) As a result, counsel were so ill prepared that when Dr. Max West, a psychiatrist who had interviewed Mrs. Owens years earlier, began to testify about her family history, defense counsel failed to understand that the Tennessee capital sentencing statute, T.C.A. § 39 — 2—203(c) (now repealed), expressly made such hearsay testimony admissible at the mitigation hearing. As a result, counsel failed to point out the statute to the trial court when the prosecutor objected on hearsay grounds. The state court erroneously ruled the testimony inadmissible when defense counsel let the objection go unanswered.
Defense counsel also failed to follow the provisions of Tennessee law that would have allowed him to hire a psychologist or psychiatrist to testify that Mrs. Owens was suffering from the recognized personality disorder of “battered wife syndrome.” See Note, Developments in the Law: Legal Response to Domestic Violence, Battered Women Who Kill Their Husbands, 106 Harv. L.Rev. 1574-1597 (1993). The record now contains extensive testimony from an expert in the field showing that the traumatic treatment Mrs. Owens experienced in childhood and as the wife of a sadistic husband created an intense anxiety disorder resulting in impulsive actions in conflict with her core values and beliefs. Her mental disorder includes physical manifestations such as an eating disorder causing her weight to fluctuate drastically from 100 to 170 pounds.
As a result of defense counsel’s failures, the jury heard nothing, not a stitch, of Mrs. Owens’ family history or the sadistic treatment she received at the hands of her husband. The fact that Mrs. Owens was so ashamed of her past that she did not want to take the stand and testify in no way excuses counsel’s failure to investigate and prepare for the mitigation hearing or counsel’s incompetent failure to cite the law allowing hearsay testimony in such hearings. Counsel obviously had no comprehension of the law governing sentencing hearings, did nothing to investigate mitigating facts, abandoned Owens’ best defense and did not prepare at all for the sentencing hearing. If that is not ineffective assistance of counsel in a capital case, there is no such thing as ineffective assistance of counsel.
III. The State Violated Owens’ Right to Prove Mitigating Factors at the Capital Sentencing Hearing
The majority opinion repeatedly refers to Owens’ offer of proof as an offer of “failed plea negotiations” and mistakenly concludes that such “failed plea negotiations” cannot constitute “mitigating evidence” within the rule allowing “any relevant mitigating evidence,” established in Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In fact, the prosecutor argued to the jury that Owens “deserved” the death penalty because she did not acknowledge and repent her murderous criminal behavior. Owens wanted to show that this was untrue because she had, in fact, offered to plead guilty and because the prosecutor’s offer of life imprisonment was itself an admission that Owens did not “deserve” the death penalty. Thus, both her offer to plead and the prosecutor’s offer of life were directly inconsistent with the prosecutor’s later claim to the trial jury that she “deserved” death because she was impenitent and hard of heart. What we have here is death penalty gamesmanship on the part of the prosecution, and the jury was entitled to know what was going on. This should not be a hard concept for my colleagues to grasp.
The majority offers a hopeless, out-of-the question argument on this subject of acceptance of responsibility. The opinion says in the first paragraph of Section V.C that “Owens’s proffered evidence shows no such acceptance” because she was willing to plead “only if guaranteed a life sentence” rather than “the electric chair.” *431The majority suggests that the evidence would have been admissible and “persuasive as a mitigating factor” if she had pled guilty and accepted “the electric chair.” The argument comes down to this: If Gail Owens had volunteered for “the electric chair,” the “proffered evidence would show acceptance” and would have met the test of “relevant mitigating evidence” under Eddings, but not otherwise. My colleagues’ view is that Mrs. Owens could only make her evidence of remorse and acceptance of responsibility admissible by following the Mosaic law of lex talionis— “an eye for an eye, a tooth for a tooth.” Surely the law of admissibility of mitigating evidence in our time under Eddings does not turn on accepting the theory of Mosaic law as found in the Old Testament.
The law is not unclear or up-m-the-air on this subject. Eddings is good law, and under Eddings Owens is entitled to prove “any relevant mitigating evidence.” Contrary to the majority’s argument that her offer to plead “shows no such acceptance” of responsibility, the opposite is true. Had Owens’ proof of her offer to plead guilty and the prosecution’s offer of life been admitted, the jury might well have concluded that the prosecution’s claim that she was remorseless and deserved death was false and that Owens’ life should be spared. As with the Brady violation and the ineffective assistance of counsel, the majority has again stood truth on its head with its argument that Owens’ offer to plead and the State’s offer of life does not fall within the meaning of “any relevant mitigating evidence.”
. Obviously my colleagues are in error that Mrs. Owens did not cooperate at all with her lawyer. From these statements in the pleadings, it is clear that she advised her lawyer in detail of her treatment and suspicions and was willing to be of assistance. She fearfully and simply (though mistakenly) said she did not want to testify. The fact that she wanted him to talk to "her grandfather or mother or father,” which he failed to do, J.A. 395-96, *425defeats the majority’s claim that she prevented her lawyer from talking to her family or developing the wife-abuse defense.
. In addition to the ABA Guidelines, quoted in the text, both the Supreme Court and the Sixth Circuit have held that an obstinate client was no excuse for failing to perform a complete investigation. See Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (holding that counsel was ineffective for failing to examine the client's court file on a prior conviction despite the fact that the client’s "own contributions to any mitigation case were minimal” and the client sent his counsel “off on false leads”); Harries v. Bell, 417 F.3d 631, 638 (6th Cir.2005) (quoting Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir.2001)) ("[D]efendant resistance to disclosure of information does not *427excuse counsel’s duty to independently investigate.”); Hamblin v. Mitchell, 354 F.3d 482, 492 (6th Cir.2003) (reversing the district court for stating that counsel cannot be ineffective when counsel is simply following a defendant's wishes not to investigate); cf. Fautenberry v, Mitchell, 515 F.3d 614, 650 (6th Cir.2008) (Moore, J., dissenting) (providing a thoroughly researched argument against the majority that counsel's deficiencies should be not excused simply because of the client’s uncooperative behavior).
That counsel may not abdicate the duty to investigate simply because the client did not actively support the mitigation case has been supported by the holdings of other circuits, as well. See Avila v. Galaza, 297 F.3d 911, 921 (9th Cir.2002) (holding counsel deficient for failing to investigate whether the client's brother was the real shooter despite counsel’s belief that such an investigation would have “go[ne] against the wishes of [the client] and his family”); Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir.1991) (holding counsel ineffective for “latching onto” client's assertions that he did not want to call penalty phase witnesses); Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983) (holding that defendant's instruction "that his lawyers obtain an acquittal or the death penalty” did not justify his lawyers’ failure to investigate the intoxication defense).
My colleagues grossly misstate the case law on this subject.
. See, e.g., State v. Thornton, 730 S.W.2d 309 (Tenn.1987); Whitsett v. State, 201 Tenn. 317, 299 S.W.2d 2 (1957); Drye v. State, 181 Tenn. 637, 184 S.W.2d 10 (1944); State v. Reagan, No. M2002-01472-CCA123-CD, 2004 WL 1114588 (Tenn.Crim. May 19, 2004); State v. McCarver, No. M2002-00123-CCA-R3-CD (Tenn.Crim.App. Jan.26, 2004); State v. Belcher, No. 03C01-9608CC00299, 1987 WL 749392 (Tenn.Crim.App. Nov.26, 1987); People v. Buggs, 112 Ill.2d 284, 97 Ill.Dec. 669, 493 N.E.2d 332 (1986); People v. Carlson, 79 Ill.2d 564, 38 Ill.Dec. 809, 404 N.E.2d 233 (1980).
. Indeed, even this month in West Tennessee, defendant Mary Winkler was sentenced to three years in prison after being found guilty of shooting her husband in the back while her children were present in their home. Much like Mrs. Owens’s allegations of sexual, physical, and emotional abuse, Ms. Winkler claimed that she was physically and emotionally abused by her husband, that he was sexually inappropriate, and that she was hiding her financial troubles from him. See http://www.cnn.com/2007/LAW/06/08/ winkler.sentence.ap/index.html, last visited June 14, 2007. See generally, Note, Developments in the Law: Legal Responses to Domestic Violence, Battered Women Who Kill Their Abusers, 106 Harv. L.Rev. 1574 (1993).