225 F.3d 833 (7th Cir. 2000)
JIM LOWERY, Petitioner-Appellant,v.RONDLE ANDERSON, Superintendent,  Indiana State Prison, Respondent-Appellee.
No. 99-3227
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 28, 2000Decided August 29, 2000

Appeal from the United States District Court  for the Southern District of Indiana, Indianapolis Division.  No. IP 96-0071-C-H/G--David F. Hamilton, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Chief Judge, Bauer and Manion, Circuit  Judges.
Bauer, Circuit Judge.


1
Jim Lowery is under  sentence of death for the 1979 murders of Mark  and Gertrude Thompson. A direct appeal to the  Supreme Court of Indiana won him a new trial, but  upon retrial he was again convicted and again  sentenced to death. His appeals thereafter were  fruitless. He petitioned for collateral relief,  but his challenges to the murder convictions and  death sentence were unsuccessful. His attempt to  win a writ of habeas corpus from the U.S.  District Court also failed. Now he is before us.  We find that neither his conviction nor his  sentence were the result of constitutional  violations and affirm the District Court's  decision to deny the writ.

I.  BACKGROUND

2
Mark and Gertrude Thompson were murdered in  their home on the night of September 30, 1979 by  a man they once trusted as their caretaker. The  Thompsons were an elderly couple and their  declining health necessitated that they hire  others to help care for them and their property.  During the summer of 1979, Lowery and his wife  Barbara filled that role.


3
Only a few months before the murders, Mark  Thompson fired Jim Lowery and ordered him off the  Thompson property. The loss of that job included  the loss of the rent-free caretaker's trailer on  the Thompson property, in which Lowery and his  family lived, and the loss of the modest salary.  At first, Lowery refused to accept his demise,  pleading with Mark Thompson that he had no money  and no place to go. Thompson, however, was so  dissatisfied with the Lowerys' service that he  offered Lowery $100.00 if he would leave the  property immediately. Lowery took the money and  moved his family to an old school bus in a nearby  campground.


4
On September 30, 1979, Lowery and his friend  Jim Bennett drove to the Thompson's home  intending to rob and murder the couple. Several  weeks before, Lowery and Bennett had discussed  committing a crime for pecuniary gain, as both  were in need of money. Lowery told Bennett he  knew where he could get some money, but it was  not until they were in the car on their way to  the Thompson's house that Lowery told Bennett  that they were going to rob the Thompsons.  Lowery's plan was to force Mark Thompson to write  a check for $9,000 and then to kill and bury the  couple. Lowery was armed with a pistol and  Bennett a sawed-off shotgun.


5
Lowery and Bennett arrived at the Thompson's  property around dark. Janet Brown, the new  caretaker, was in the trailer reading a book when  she heard the Thompson's dog bark. Seconds later,  the trailer door was kicked in and an armed  Lowery entered, leaving Bennett outside.


6
Ms. Brown later told police that she  immediately recognized the man as the Thompson's  former caretaker. The two had met at the post  office a week earlier and had struck up a  conversation. When she told Lowery that she  worked for the Thompsons, Lowery admitted that he  had been their previous caretaker and he spoke,  she thought, hatefully of them.


7
Lowery put the pistol against Brown's neck and  forced her to take him into the Thompson's house.  Bennett joined them as they crossed the lawn to  the house. Inside, they found Mark Thompson  standing in the kitchen. Immediately upon seeing  Lowery and being told that this was a "hold up,"  Thompson said "You don't want to do this now,  Jim." Lowery responded by shooting him in the  stomach.


8
After shooting Mark Thompson, Lowery forced  Brown, with the gun to her head, through the  kitchen, down the hall, and into the den where  Gertrude Thompson was watching television. Lowery  ordered Mrs. Thompson to get up and to go into  the kitchen. She complied. As she was walking  down the hall, Lowery hit her in the head with  the gun. She began to bleed, but was able to make  it into the kitchen, where Lowery shot her once  in the head at close range. Gertrude Thompson  died before help could arrive.


9
Lowery also shot Janet Brown, but because she  put her hands in front of her, the shot was  deflected and she was grazed but alive. She  wisely lay on the floor pretending to be dead. As  she lay there, she heard the burglar alarm sound.  Somehow, despite his wound, Mark Thompson had  activated it, obviously greatly distressing  Lowery and Bennett. Lowery went back to where  Mark Thompson was, and Brown heard two more  shots. Lowery and Bennett then fled.


10
Later, when she was certain the two men were  gone, Brown called the police. When they arrived,  Gertrude Thompson was dead and Mark Thompson was  dying from a gunshot wound to the head. Before  his death, Mark Thompson was able only to say  that four "monkeys" assaulted him. His son  testified that Mr. Thompson used the term  "monkeys" when he could not remember someone's  name.


11
Using the back roads, Lowery and Bennett  returned to the old school bus. They told  Lowery's wife, Barbara, about the shootings.  Lowery was arrested two days later. Bennett the  day after that. After his arrest, Lowery made  several incriminating statements to police  officers. He also told his cellmate of his  crimes, describing them in a detailed manner.  Before trial he challenged the admissibility of  these statements, but was successful in excluding  only some.


12
The prosecution struck a deal with Bennett. In  exchange for his testimony against Lowery and a  plea of guilty, the State dropped the habitual  offender charge against Bennett and its request  for the death penalty. It also guaranteed Bennett  a sentence of 40 years.


13
Bennett testified that he and Lowery had  planned to rob the Thompsons and that Lowery shot  the Thompsons and Ms. Brown during the attempted  burglary. Brown identified Lowery in court and  testified that he was the person who shot her and  the Thompsons. Barbara Lowery also testified,  recounting how her husband and Bennett left the  camp with a handgun and a shotgun, saying they  were "off on a caper." When they returned later  that night, she said, they were visibly upset and  shaking, with Bennett explaining that it "went  bad," and, in Lowery's presence, saying "he"  (meaning Lowery) shot them in the head. The jury  convicted Lowery of two counts of murder and one  count of attempted murder and recommended that he  be put to death. The judge sentenced him to  death. The Supreme Court of Indiana reversed  Lowery's convictions on direct appeal because the  trial court failed to sequester the jury. Lowery  v. State, 434 N.E.2d 868 (Ind. 1982). Lowery was  tried a second time.


14
Bennett refused to testify at the second trial.  He wanted a "better deal" on his plea bargain.  The State refused. Bennett was brought before the  court (out of the jury's presence) and refused to  be sworn in. The court threatened to hold Bennett  in contempt, but Bennett still refused to  testify. He was held in contempt. The next day,  this procedure was repeated and the same result  obtained. Frustrated, the trial judge told  Bennett that if he continued to refuse to  testify, the court would order the prosecutor to  bring murder charges against Bennett because he  had violated his plea agreement. Both the  prosecutor and the defense counsel agreed that  such an order was beyond the scope of the court's  authority and the court recanted. Before Bennett  was aware that the threat of prosecution had been  removed, however, he changed his mind and agreed  to testify. That change was short lived. Once  Bennett was advised that the only penalty for  refusing to testify was to be held in contempt of  court, he again refused to testify. The court  then declared Bennett to be unavailable and  allowed the prosecutor to read Bennett's  testimony from the first trial to the jury. The  jury convicted Lowery of the murders of Mark and  Gertrude Thompson and the attempted murder of  Janet Brown.


15
At the sentencing phase of the trial, the  prosecution argued for the death penalty, saying  it was justified because the murders were  committed during an attempted burglary (an  aggravating factor) and because there were  multiple murders. Lowery's mother, father and  youngest sibling testified on Lowery's behalf, as  did a psychiatrist retained by the defense.  Lowery also took the stand, admitting to the  crimes. Nevertheless, the jury recommended the  death penalty. The trial judge sentenced Lowery  accordingly.


16
The Supreme Court of Indiana affirmed the  murder convictions and death sentences. Lowery v.  State, 478 N.E.2d 1214 (Ind. 1985). However, it  later reversed the conviction of attempted  murder, saying the jury had been wrongly  instructed on that count. Lowery v. State, 640  N.E.2d 1031 (Ind. 1994). The State chose not to  retry Lowery for the attempted murder. The U.S.  District Court denied habeas relief. Lowery v.  Anderson, 69 F.Supp.2d 1078 (S.D.Ind. 1999).  Lowery appeals, claiming that the introduction of  Bennett's prior testimony violated his Sixth and  Fourteenth Amendment rights, that the State and  trial court violated Caldwell v. Mississippi, 472  U.S. 320 (1985), by leading the jury to believe  that its recommendation to the judge concerning  the death penalty carried less weight than in  fact it does, and that he was denied effective  assistance of counsel. We affirm.

II.  DISCUSSION

17
Federal courts may grant a writ of habeas  corpus when a person is held in custody under a  state court judgment in violation of the United  States Constitution. 28 U.S.C. sec.2254; Kavanagh  v. Berge, 73 F.3d 733, 735 (7th Cir. 1996).  Because Lowery filed his petition before the  effective date of the Antiterrorism and Effective  Death Penalty Act of 1996, our review is plenary.  Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en  banc) rev'd on other grounds 521 U.S. 320 (1997).  We must accept as true the reasonable factual  findings of the state courts, Abrams v. Barnett,  121 F.3d 1036, 1038 (7th Cir. 1997), but questions  of law or mixed questions of law and fact are  considered de novo. Brewer v. Aiken, 935 F.2d  850, 855 (7th Cir. 1991). Furthermore, we may  consider our own jurisprudence, in addition to  the jurisprudence of the United States Supreme  Court. Abrams, 121 F.3d at 1037-38.

A.  Admission Of Bennett's Prior Testimony

18
At Lowery's first trial, Jim Bennett testified  for the prosecution. He did so pursuant to a plea  agreement that required his testimony and  guaranteed him a sentence of 40 years. Before the  retrial, Bennett informed the prosecutor that he  would not testify again unless the prosecutor  reduced his sentence to 10 years. The prosecutor  refused. Bennett, then, true to his word, refused  to testify when called. The trial judge held  Bennett in contempt, but Bennett still refused to  testify. As described below, this procedure was  repeated several times, outside the jury's  presence. Finally, Bennett was called with the  jury present. He refused again to testify and was  again held in contempt. At that point, the trial  judge declared Bennett to be an unavailable  witness and allowed the prosecutor, over Lowery's  objection, to read to the jury Bennett's  testimony from the first trial. Lowery claims  this was reversible error because it denied him  his constitutional right to confront and cross-  examine the witness against him. He also argues  that Bennett was not truly "unavailable" because  the State failed to exhaust other means which  might have induced Bennett to testify.


19
The Confrontation Clause of the Sixth Amendment  guarantees the right of the accused to "be  confronted with the witnesses against him." U.S.  Const. Amendment VI. See also Delaware v. Van  Arsdall, 475 U.S. 673, 678 (1986). The main and  essential purpose of confrontation is to secure  for the opponent the opportunity for cross-  examination. United States v. Sasson, 62 F.3d  874, 882 (7th Cir. 1995), cert. den'd, 516 U.S.  1131 (1996). Lowery contends that he was deprived  of this right when Bennett's prior testimony was  read to the jury.


20
The Sixth Amendment confrontation clause,  however, "permits, where necessary, the admission  of certain hearsay statements against a defendant  despite the defendant's inability to confront the  declarant at trial." Maryland v. Craig, 497 U.S.  836, 847-48 (1990) (citations omitted). The  confrontation clause is satisfied, and no  constitutional violation occurs, when the  defendant had a full and fair opportunity to  cross-examine the witness at the earlier  proceeding and the witness is "unavailable" for  the subsequent proceeding. Mancusi v. Stubbs, 408  U.S. 204, 216 (1972). Lowery admits that  Bennett's testimony was subject to cross-  examination at the first trial and does not  contend that the cross-examination was less than  full or meaningful. He complains that Bennett's  prior testimony was improperly admitted because  Bennett was not truly "unavailable" the second  time around.


21
It is well established that a witness may be  deemed "unavailable" and use of his former  testimony permitted if the witness "persists in  refusing to testify . . . despite an order of the  court to do so." Fed.R.Evid. 804(a)(2). See also  California v. Green, 399 U.S. 149, 168-69 (1970).  However, there is more to consider. The  prosecution must also demonstrate that it made a  good faith effort to obtain the witness'  testimony, in person, before the trier of fact.  Ohio v. Roberts, 448 U.S. 56, 74 (1980). The  lengths to which the prosecution must go to  produce a witness is a question of  reasonableness. Id.


22
Here, in an effort to secure Bennett's  testimony for the second trial, the prosecutor  had Bennett transported from the state prison in  which he was incarcerated to a county jail so  that he could be available to testify. He also  attempted to talk with Bennett before calling him  as a witness, and kept calling him as a witness  during the trial, even though Bennett refused to  testify and had been held in contempt of court.  What the prosecution did not do was, as the trial  judge suggested, threaten to revoke Bennett's  plea agreement and try him for murder, or  threaten to try him for obstruction of justice.  The Supreme Court of Indiana found that Bennett  "was amenable" to these tactics and Lowery  suggests that because they might have worked, the  State did not act reasonably or in good faith in  attempting to obtain Bennett's testimony for the  retrial. The District Court disagreed, saying:


23
[t]he fact that other steps the prosecution did  not take might also have been reasonable does not  show either that it failed to make a reasonable,  good faith effort to secure Bennett's testimony,  or that Lowery's Sixth Amendment rights were  violated by use of Bennett's testimony from  Lowery's first trial.


24
Lowery, 69 F.Supp.2d at 1093. We agree. Although  the record is silent as to why the prosecution  chose not to threaten Bennett with further  prosecution or charge him with a crime, there is  no requirement that it do so and such decisions  are well within the prosecution's discretion.  Johnson v. State, 675 N.E.2d 678, 683 (Ind.  1996); LaMotte v. State, 495 N.E.2d 729, 733  (Ind. 1986). We decline to impose a rule imposing  the court's will upon the prosecution and we fear  that to do so would violate the separation of  powers.


25
The fact that more, theoretically, could have  been done to persuade Bennett to testify does not  persuade us to reach a contrary result. If we  adopt Lowery's position and mandate that the  prosecution threaten recalcitrant witnesses, or  possibly even charge them with minor crimes,  where do we stop? A bright line test is not  possible in cases such as this. We believe the  better rule is to consider the totality of the  circumstances and determine reasonableness and  good faith on a case by case basis. In this case  we find that the prosecution did make a good  faith effort to secure Bennett's testimony for  the retrial.


26
We understand the passion with which Lowery  presents his argument, especially in light of the  inconsistent statements Bennett made between the  first and second trials. During that interim,  Bennett wrote letters to state officials and to  Lowery, saying in one that there were three  people involved in the crime and, in another,  that Lowery was not present when the crime  occurred. In each instance, he offered to  exchange information for a further reduction in  his sentence.1 Lowery argues that he was  irrevocably prejudiced by the prosecution's  failure to procure Bennett as a live witness so  that he could cross-examine him with this new  information. He asks that we review this claim  under the harmless error standard of Chapman v.  California, 386 U.S. 18 (1967), and says that  once we do reversal is mandated.


27
Under the Chapman harmless error standard, the  government has the burden of demonstrating that  the error was harmless beyond a reasonable doubt.  Id. at 22. We have reviewed and rejected that  argument and instead adopted the standard set  forth by the Supreme Court in Brecht v.  Abrahamson, 507 U.S. 619, 637 (1993), which holds  that an error is harmless unless the defendant  can show that it had a "substantial and injurious  effect or influence in determining the jury's  verdict." Tyson v. Trigg, 50 F.3d 436, 446-47 (7th  Cir. 1995), cert. den'd, 516 U.S. 1041 (1996).  See also Fleenor v. Anderson, 171 F.3d 1096, 1101  (7th Cir. 1999), cert. den'd, 120 S.Ct. 215 (1999)  (applying the Brecht standard in a capital case).  The Brecht standard recognizes that an earlier  court has already reviewed the claimed error  under the heightened Chapman standard and,  therefore, permits a lower level of scrutiny on  appeal. Here, the "new evidence" upon which  Lowery relies developed before the second trial.  His claims thereafter could have been reviewed by  the Supreme Court of Indiana on direct appeal and  on petition for collateral relief or by the U.S.  District Court on the petition for writ of habeas  corpus. They were not, however, because the  letters and testimony regarding Bennett's alleged  recantation were not offered at trial. The  Supreme Court of Indiana, in refusing to review  the alleged error said "the court did not have an  opportunity to rule on the offer of the letter,  and there is no error presented for our review."  Lowery, 478 N.E.2d at 1223-24 (Ind. 1985). Thus,  contrary to Lowery's assertion, we believe that  the courts before us have had an opportunity to  address the claimed error and have rejected it,  finding that it was either waived or did not  present an issue of manifest injustice requiring  the reversal of his conviction. We therefore  believe the rationale behind Brecht has been  satisfied and apply its standard of review to  this case.


28
We find that Lowery has not met that burden.  The trial court indicated that Lowery could  inform the jury about Bennett's letter and  statements, but Lowery's attorney never attempted  to do so. Lowery, 478 N.E.2d at 1223.  Furthermore, the jury was informed that Bennett  was testifying pursuant to a plea agreement  which, as the State points out, could make the  jury skeptical of his testimony anyway. But most  importantly, we believe that Lowery fails to meet  his burden of proving that the claimed error had  a "substantial and injurious effect or influence  in determining the jury's verdict" because of the  wealth of corroborative information presented by  the prosecution. Not only did Bennett testify  that it was Lowery who shot the Thompsons and Ms.  Brown, Lowery himself confessed those facts to  various police officers and his cellmate and  those statements were presented to the jury. Ms.  Brown also testified and identified Lowery as her  attacker and as the murderer of the Thompsons.  And, finally, there was the testimony of Lowery's  ex-wife, Barbara. Our review of the entire record  in this case convinces us that any error (and we  believe there was none) in the admission of  Bennett's prior testimony was harmless.


29
B.  Role Of The Jury's Recommendation Of Death


30
A death sentence may not be based on "a  determination made by a sentencer who has been  led to believe that the responsibility for  determining the appropriateness of the  defendant's death rests elsewhere." Caldwell v.  Mississippi, 472 U.S. 320, 328-29 (1985). Lowery  complains that he was denied due process and a  fair sentencing determination because the court  and prosecutor "demeaned" the jury's sense of  responsibility in a "materially inaccurate and  misleading manner" that violated Caldwell. The  court told the jury during voir dire that "it's  not the function of the jury to sentence a  defendant. It is solely the responsibility of the  Judge, me, and the Judge must make the final  decision. The jury's decision is merely a  recommendation." The prosecutor spoke likewise.


31
In Caldwell, the prosecutor, apparently hoping  to sway timid jurors, argued to the jury that if  it decided to impose the death penalty, its  decision would not be the "final decision," and  that its decision was "automatically reviewable"  by the state's supreme court. The Supreme Court  held that these comments were inappropriate and  required reversal because the suggestion that  "the responsibility for any ultimate  determination of death will rest with others  presents an intolerable danger that the jury will  in fact choose to minimize the importance of its  role." Id. at 333. Any decision based upon a  jury's inaccurate perception about its role in  the imposition of a death sentence is, under the  reasoning of Caldwell, unconstitutional. Lowery  argues to us that the court's and prosecutor's  statements were inaccurate and require reversal  of his sentence because they minimized the jury's  role and made the juror's believe their role in  imposing a death sentence was almost ceremonial.  We do not agree.


32
To violate Caldwell, the remarks to the jury  must inaccurately describe the role of the jury  under state law. Romano v. Oklahoma, 512 U.S. 1,  9 (1994); Dugger v. Adams, 489 U.S. 401, 401  (1989); Darden v. Wainwright, 477 U.S. 168, 183-  84 n.15 (1986). Under Indiana law, the jury  recommends to the judge whether the death penalty  should be imposed. The judge must consider the  jury's recommendation, but, the final decision is  his. Ind. Code sec.35-50-2-9(e). In this case,  the jury was informed that its role was to  recommend to the trial judge whether or not to  impose the death penalty. Contrary to Lowery's  suggestion, the jury was properly instructed as  to its role and there was no Caldwell violation.


33
We recently addressed, in Fleenor v. Anderson,  171 F.3d 1096, 1099-101 (7th Cir. 1999), cert.  den'd, 120 S.Ct. 215 (1999), the application of  Caldwell to the jury recommendation procedure in  Indiana. There, the jury was repeatedly informed  that its role in sentencing was to make a  recommendation to the trial judge, who would make  the final sentencing decision. The judge advised  the jury during voir dire


34
In Indiana, after the trial of a case, if a  defendant is found guilty, then another hearing  is held before the jury, where the parties have  an opportunity to present . . . evidence of  aggravating and mitigating circumstances in the  case and then the jury again retires to make a  recommendation to the court from the jury whether  they recommend the death penalty. It's not the  function of a jury to sentence a defendant. It is  solely the responsibility of the Judge, me, and  the Judge must make the final decision. The  jury's opinion is merely a recommendation to me.


35
Lowery, 69 F.Supp.2d at 1101, citing state court  record, exhibit 28 at page 48. These words  mirror, almost exactly, the words given to  Lowery's jury. We found in Fleenor, and we find  here, that telling the jury that its role is  advisory and that the court makes the final  sentencing determination does not violate  Caldwell. As we said in Fleenor, "what the judge  was telling the jurors was true, and it was also  something they were entitled to know." Id. There  being no affirmative misstatement of law or fact  that could mislead the jury, we find that there  was no violation of Lowery's rights.

C.  Ineffective Assistance Of Counsel

36
The Sixth Amendment protects a defendant's right  to a fair trial by providing him with a right to  counsel. Strickland v. Washington, 466 U.S. 668,  684 (1984). This right is satisfied as long as  counsel's conduct at trial was competent. This  right is violated when counsel's conduct was so  deficient as to render the trial meaningless or  its result unreliable. Id. at 686. Lowery claims  his trial counsel was so ineffective as to meet  this standard.


37
To prevail on a claim of ineffective assistance  of counsel, Lowery must prove


38
(1) counsel's  representation was deficient, and (2) the  deficient performance so prejudiced him as to  deprive him of a fair trial. Id. at 687-88. The  absence of either prong defeats his claim. Id. at  700. Our review is highly deferential, id. at  689, and we will indulge "a strong presumption  that counsel's conduct falls within the wide  range of reasonable professional assistance."  Galowski v. Berge, 78 F.3d 1176, 1180 (7th Cir.  1996), cert. den'd, 519 U.S. 878 (1996)  (citations omitted). Indeed, we will reverse only  when it has been shown with a reasonable  probability "that, but for counsel's  unprofessional errors, the result of the  proceeding would have been different." Id.


39
Lowery argues that his trial counsel provided  ineffective assistance by (1) failing to  introduce evidence of Ms. Brown's prior  misidentification of him at the first trial,  where she identified a picture of Bennett as a  picture of him, (2) failing to introduce  additional evidence impeaching Bennett; and (3)  failing to investigate and present additional  mitigating evidence during the sentencing phase  of the trial. Like the District Court, we quickly  dismiss Lowery's challenge to his attorney's  failure to impeach Brown with the mistaken  identification.


40
In Lowery's first trial, defense counsel showed  Janet Brown a photograph of Bennett and asked  whether the person in the photo was the person  who shot her. Brown said "[i]t's not a very good  picture. It looks like James Lowery's eyes, but  it's not a very good picture of him." Counsel did  not repeat the exercise or raise the prior  misidentification in the second trial. Claiming  that this omission was a constitutional  violation, Lowery asks us to reverse his  conviction.


41
We will not second guess a trial counsel's  strategic or tactical decisions. United States v.  Godwin, 202 F.3d 969, 973 (7th Cir. 2000), cert.  den'd, 120 S.Ct. 2023 (2000). At a post-  conviction hearing, counsel testified that he did  not introduce this evidence because he considered  it a "lucky fluke" and was concerned that the  jury might have regarded the use of a poor  quality photograph as an attempt to trick Ms.  Brown. It also, he said, would have gone against  his trial strategy of making no reference to  Lowery's prior trial and conviction. This is  likely because the court had granted a defense  motion in limine to exclude any reference to the  previous trial. The District Court found that  this omission was a strategic decision and did  not rise to the level of ineffective assistance  of counsel. We agree. Counsel can fairly have  been said to have been exercising trial strategy  and tactics in deciding not to challenge Brown's  credibility in this manner.


42
Lowery also argues that his attorney was  ineffective because he failed to offer Bennett's  letters and other inconsistent statements during  the second trial. He believes this evidence would  have further impeached Bennett's credibility. The  State argues that counsel's failure did not  prejudice Lowery.


43
Our inquiry into whether Lowery was prejudiced  by his counsel's omission, under Strickland,  focuses on whether the claimed deficiency  rendered the proceeding unreliable or unfair.  Lockhart v. Fretwell, 506 U.S. 364, 369-70  (1993). As the District Court noted, the jury was  already skeptical of Bennett. They were aware of  the existence of the plea agreement whereby he  was trading his testimony in exchange for  leniency, and they saw him refuse to testify and  saw the judge hold him in contempt. It is hard to  imagine that the jury could have held Bennett in  high regard after all of that. Therefore, it can  be supposed that his credibility had already been  damaged in the eyes of the jury. The additional  evidence probably would have had little  additional impact on that front.


44
Furthermore, as the District Court also  discussed, "Bennett's testimony on the critical  points was corroborated." Lowery's ex-wife  Barbara testified to her observations and to the  statements made to her by both Lowery and  Bennett. There was also the testimony of Janet  Brown, an innocent victim who was at the wrong  place at the wrong time. Her testimony was  virtually unchallenged and powerful. It was also  consistent with and in addition to Bennett's  testimony. Finally, there were the admissions  made by Lowery to various police officers and to  his cellmate. Viewed in the totality of these  circumstances, we believe that the admission of  this extra evidence to impeach Bennett would not  have changed the jury's verdict. The omission did  not, then, render the trial unfair or unreliable.


45
Lowery challenges the District Court's reliance  on his penalty phase testimony to conclude that  trial counsel's failure to offer Bennett's  letters and statements did not prejudice him. The  District Court said that the trial result could  not be doubted as Lowery admitted on cross-  examination that he murdered the Thompsons. He  fears that the court's analysis renders the  Strickland prejudice prong outcome determinative  and puts defendants in a no-win situation if they  choose to confess at the penalty phase in hopes  of receiving a more lenient sentence. He  correctly argues that if that were the standard,  no defendant would ever confess because he could  not later challenge any errors on appeal.  Although this argument contains some logic, it is  inapplicable here. The District Court did not  base its finding of no-prejudice on Lowery's  penalty phase testimony alone. As discussed  above, it found a wealth of other corroborative  testimony that supported the jury's verdict. For  this reason, we reject Lowery's argument and  affirm the District Court's finding that he was  not prejudiced by his trial counsel's failure to  introduce Bennett's letters and statements.


46
Finally, we turn to Lowery's contention that  his counsel was ineffective because he failed to  introduce additional mitigating evidence at the  sentencing phase of the trial. He wishes that his  lawyer had presented more biographical and  character evidence. The Supreme Court of Indiana  found that the desired evidence would have  mirrored evidence presented and been cumulative.  Lowery, 640 N.E.2d at 1048. This is true.  Lowery's mother, father, and brother testified  that he had a rough childhood. A psychiatrist  testified to his previous bouts of mental  illness. The additional evidence that he wished  to present was of the same nature. It was  testimony by his younger siblings that he was  kind to children and that he showed kindness to  them while growing up. This proffered testimony,  as the courts before us found, would not have  added much and would have been largely  repetitive. Although we understand Lowery's wish  to present as much evidence as possible to  humanize him to the jury and avoid the death  penalty, we cannot say that his trial counsel's  failure to offer this evidence was a violation of  his constitutional rights.

III.  CONCLUSION

47
For the foregoing reasons, the judgment of the  District Court is affirmed.


48
AFFIRMED.



Note:


1
 He also reportedly told prison officials that he  was high on drugs at the time of the crime and  that he was going to "fuck up" the second trial  by saying that Lowery wasn't there.


