                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CAL COBURN BROWN,                         
             Petitioner-Appellant,               No. 04-35998
               v.
                                                  D.C. No.
                                                CV-01-00715-JCC
JEFFREY UTTECHT,* Superintendent
of WA State Penitentiary,                          OPINION
             Respondent-Appellee.
                                          
       Appeal from the United States District Court
          for the Western District of Washington
    John C. Coughenour, Chief District Judge, Presiding

                    Argued and Submitted
            January 25, 2008—Pasadena, California

                       Filed June 27, 2008

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
            Marsha S. Berzon, Circuit Judges.

               Opinion by Chief Judge Kozinski;
                  Dissent by Judge Reinhardt




  *Jeffrey Uttecht is substituted for his predecessor, John Lambert, as
Superintendent of WA State Penitentiary, pursuant to Fed. R. App. P.
43(c)(2).

                                7601
7604                 BROWN v. UTTECHT


                        COUNSEL

Gilbert H. Levy and Suzanne Lee Elliot, Seattle, Washington,
for the petitioner.
                          BROWN v. UTTECHT                           7605
John J. Samson, Assistant Attorney General; Robert M.
McKenna, Attorney General, Olympia, Washington, for the
respondent.


                              OPINION

KOZINSKI, Chief Judge:

   On remand from the Supreme Court, Uttecht v. Brown, 127
S. Ct. 2218 (2007), we consider whether defense counsel’s
performance was deficient.

                                  Facts

   After raping and murdering Holly Washa,1 Brown was con-
victed of aggravated first-degree murder in Washington. With
the aid of an investigator, a social worker and a mitigation
specialist, Brown’s three experienced attorneys put on a thor-
ough mitigation case during the penalty phase of Brown’s
trial. They (1) created a 250-page life chronology detailing
Brown’s social and medical history, and presented most of
this information at trial; (2) introduced evidence that Brown
had a mental disorder; (3) called Dr. Maiuro, a clinical psy-
chologist; and (4) called multiple character witnesses, such as
family members. Nonetheless, the jury sentenced Brown to
death.

   After exhausting his direct appeals and state collateral
review, Brown petitioned for a writ of habeas corpus in fed-
eral court, raising a number of constitutional claims regarding
his trial and sentencing.2 The district court denied his petition
  1
     For a more detailed discussion of the facts, see the Washington
Supreme Court’s opinion in Brown’s direct appeal, State v. Brown, 940
P.2d 546, 555-59 (Wash. 1997) (en banc).
   2
     Because Brown filed his habeas petition after April 23, 1996, we apply
the “substantive review standards of the Antiterrorism and Effective Death
7606                     BROWN v. UTTECHT
after holding an evidentiary hearing. Brown appeals on three
issues relating to his death sentence: the facial validity of the
Washington death penalty statute, the exclusion of jurors and
ineffective assistance of counsel. We also expanded the certif-
icate of appealability to include whether the district court
erred in excluding death penalty trial reports.

   We upheld Washington’s death penalty statute, Brown v.
Lambert, 451 F.3d 946, 947-48 (9th Cir. 2006), but ruled that
a juror was unconstitutionally excluded, id. at 948-54. The
Supreme Court then reversed us on the juror exclusion issue.
Uttecht, 127 S. Ct. at 2222. We therefore affirm the district
court’s rulings that the Washington death penalty statute is
facially valid, see Brown v. Lambert, 451 F.3d at 947-48, and
that the jury selection for Brown’s trial was constitutional, see
Uttecht, 127 S. Ct. at 2222. We now address Brown’s ineffec-
tive assistance of counsel claim, including the district court’s
exclusion of the death penalty trial reports.

                             Analysis

   1. To establish ineffective assistance of counsel, Brown
must show that defense counsel’s performance was objec-
tively deficient and prejudiced his defense. See Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)
(citing Strickland v. Washington, 466 U.S. 668, 687, 694
(1984)). Under AEDPA, Brown must also show that the state
court adjudication was objectively unreasonable. Id. at 1125-
26 (citing 28 U.S.C. § 2254(d)). Brown’s lawyers presented
significant mitigating evidence, unlike other cases where
counsel were deficient for presenting hardly any mitigation
case at all. Cf., e.g., Rompilla v. Beard, 545 U.S. 374, 381-86
(2005); Frierson v. Woodford, 463 F.3d 982, 989-93 (9th Cir.

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(‘AEDPA’).” Webster v. Woodford, 369 F.3d 1062, 1066 (9th Cir.), cert.
denied, 543 U.S. 1007 (2004); see also Lindh v. Murphy, 521 U.S. 320,
327 (1997).
                      BROWN v. UTTECHT                    7607
2006). Nevertheless, Brown argues that his representation was
unconstitutionally deficient because his lawyers did not (1)
call a psychiatrist, (2) call Sally Schick, Brown’s former
prison counselor, and (3) cross-examine the prosecution’s
psychiatrist, Dr. Brinkley.

  a.   Failure to call a psychiatrist

   More than nine months before trial, defense counsel
learned that Brown may have had a mental disorder. Acting
on the advice of a neuropsychologist, counsel retained Dr.
Maiuro, a well-respected clinical psychologist who diagnosed
Brown as manic, and as suffering from antisocial personality
disorder and sexual sadism. Counsel designed an extensive
mitigation case based on the theory that Brown’s troubled
home life had led to these mental disorders, and that had
Brown been properly treated upon his release from prison
shortly before the killing, he might not have committed the
crime. At the penalty phase trial, counsel presented witnesses
to testify at length regarding Brown’s upbringing and social
history, and also put on extensive testimony from Dr. Maiuro
concerning Brown’s mental problems. Counsel debated
whether to also retain a psychiatrist, but they ultimately con-
cluded that a psychiatric evaluation wouldn’t provide as much
useful information as a psychological evaluation, including
the administration of formal psychological testing. At trial,
Dr. Maiuro competently testified that Brown suffered from all
three mental disorders and explained why he had diagnosed
them. He further testified that manic disorder was generally
treatable with lithium.

   Dr. Maiuro was qualified to diagnose Brown’s mental con-
dition and testify that Brown could have been treated with
lithium. But Dr. Maiuro couldn’t prescribe lithium as he isn’t
a physician. Consequently, just before trial, Dr. Maiuro rec-
ommended that defense counsel consult a psychiatrist, and
specifically recommended Dr. Brinkley. But when defense
counsel approached Dr. Brinkley, they learned that he had
7608                    BROWN v. UTTECHT
already agreed to testify for the prosecution. Because it was
so close to trial and defense counsel had previously decided
not to retain a psychiatrist, they didn’t contact any other psy-
chiatrists. At trial, Dr. Brinkley testified that, after his review
of Brown’s medical records, he could see no basis for pre-
scribing lithium, as there was “no clear indication” that
Brown had “a disorder for which lithium was appropriate.”

   The prosecution’s closing argument relied on Dr. Brink-
ley’s testimony to argue that Dr. Maiuro was “kind of out on
a limb” in the part of his testimony concerning lithium. The
prosecution did not, however, argue that Dr. Maiuro was
wrong in his diagnosis of manic disorder. It only reminded the
jury that “in Dr. Brinkley’s opinion,” Brown “did not have
any sort of disorder that . . . would suggest that lithium would
be appropriate.” It also emphasized Dr. Maiuro’s testimony
that Brown was a sexual sadist who “took pleasure . . . in
some way [from] sex and violence,” and did not question Dr.
Maiuro’s diagnosis of antisocial personality disorder. Defense
counsel responded that if Brown should not have been on lith-
ium, then the fact that Oregon had him take lithium could
have caused “vast and far reaching complications” affecting
his mental state, thus reducing his culpability. Defense coun-
sel also emphasized Brown’s “sexual sadism” as a mitigating
factor because it arose from his difficult childhood. (Brown
does not argue that his counsel should not have introduced the
sexual sadism evidence.)

  [1] Brown argues that counsel were deficient for failing to
call a psychiatrist to rebut Dr. Brinkley’s testimony that lith-
ium wouldn’t have helped Brown. Brown suggests that only
someone who was able to prescribe lithium himself could
have affirmatively rebutted Dr. Brinkley’s testimony that
Brown did not have a condition that was treatable with lith-
ium. But Dr. Maiuro was qualified to testify about lithium,
even though he was not himself licensed to prescribe it, and
everyone agrees that he was widely respected. The additional
weight, if any, of testimony by a psychiatrist was outweighed
                        BROWN v. UTTECHT                      7609
by other considerations that defense counsel took into
account. Retaining a psychiatrist would have required a con-
tinuance. Counsel offered two legitimate reasons for not seek-
ing a continuance: They wanted the jury to deliberate over the
Christmas holiday, when jurors might be more merciful, and
they wanted to give the prosecution less time to prepare its
penalty phase case.

   [2] In any event, it’s far from clear that Dr. Brinkley’s testi-
mony was particularly damaging to defense counsel’s mitiga-
tion theory. While Dr. Brinkley cast some doubt on whether
Brown had a mental disorder that was treatable with lithium,
he did not ultimately dispute the larger defense theory—that
Brown developed serious mental problems as a result of his
difficult family history. As defense counsel put it at closing
argument, a pattern of ongoing abuse led to “adult disorders
[that] created major problems” for Brown. Defense counsel’s
theory was supported by an investigation yielding hundreds of
pages of material, and was bolstered at trial through extensive
testimony from Brown’s family members. This foundation
was not seriously undermined by Dr. Brinkley.

   [3] Nor, as we have noted, did Dr. Brinkley squarely dis-
pute Dr. Maiuro’s diagnosis of manic disorder, or cast any
doubt on the diagnoses of antisocial personality disorder and
sexual sadism. Defense psychiatric testimony might or might
not have convincingly rebutted Dr. Brinkley’s views on the
usefulness of lithium for Brown’s mental state. But it would
not have greatly changed the mitigation case put before the
jury.

   [4] Furthermore, retaining a psychiatrist involved signifi-
cant risk. The trial court had ruled that, after the guilt phase
verdict, defense counsel were required to give the prosecution
all written reports they had concerning Brown’s mental
health. See State v. Pawlyk, 800 P.2d 338, 349-50 (Wash.
1990) (en banc). By retaining a psychiatrist, therefore,
defense counsel would have risked obtaining unfavorable
7610                       BROWN v. UTTECHT
written reports (like Dr. Brinkley’s), which they would then
have had to turn over to the prosecution. This was not a trivial
risk, as several of the mental health experts who evaluated
Brown had not diagnosed him with manic disorder—the the-
ory advanced by the defense.

  Using the “ ‘fabled twenty-twenty vision of hindsight,’ ”
Edwards, 475 F.3d at 1127 (quoting LaGrand v. Stewart, 133
F.3d 1253, 1271 (9th Cir. 1998)), we now know that Brown’s
habeas counsel eventually found Dr. Scher, a psychiatrist who
could testify that Brown had bipolar disorder and could have
been treated with lithium. But Brown’s trial counsel couldn’t
have known Dr. Scher’s ultimate opinion, as she didn’t reach
her conclusion until almost a decade after the trial.3

   [5] Ultimately, it doesn’t matter whether we agree with trial
counsel’s decision not to obtain a psychiatric evaluation after
Dr. Maiuro recommended that they do so. What matters is
that defense counsel used “sound trial strategy,” Edwards,
475 F.3d at 1126 (quoting Strickland, 466 U.S. at 689), in
responding to Dr. Maiuro’s suggestion. Counsel did not
ignore the suggestion; they followed up on it and even con-
tacted Dr. Brinkley, the psychiatrist that Dr. Maiuro recom-
mended as likely to give a favorable evaluation. When Dr.
Brinkley proved unavailable and agreed to be a witness for
   3
     Even if Dr. Scher had testified, the prosecution would have forced her
to make many damaging concessions during cross-examination. Dr. Scher
admitted that Brown knew right from wrong, and that he was in control
of his behavior. She is not a forensic psychiatrist, and has no expertise in
sexual sadism. In fact, she was aware of no literature supporting her view
that lithium treatment would have made Brown less likely to commit a
sexually violent crime, nor did she know of any tests or studies that she
could have done to reinforce that opinion. Furthermore, the prosecution’s
argument that Dr. Brinkley was best qualified to discuss connections
between lithium and Brown’s crime could have been strengthened had Dr.
Scher testified, because she had consulted with Dr. Brinkley about proper
medications in other circumstances. It’s therefore not clear that Dr.
Scher’s testimony would have helped Brown; in all likelihood, it would
have hurt him.
                       BROWN v. UTTECHT                      7611
the state, the difficulties and risks of obtaining other psychiat-
ric evaluations became even more acute. We can’t say that
trial counsel weighed them in an irrational or unprofessional
manner—or even that they made the wrong choice. The dis-
trict court did not err in finding that petitioner has not shown
ineffective assistance of counsel on this point.

  b.   Failure to call Sally Schick

   Schick is a licensed professional counselor who evaluated
Brown regularly for two years while she was working at an
Oregon prison where Brown had previously been incarcer-
ated. She believed that Brown had a mental disorder, and
requested that Brown be treated with lithium. Although at
least one Oregon prison system psychiatrist disagreed with
Schick’s diagnosis, she found one who prescribed him lithium
for a five-to-six-month-long trial period. Schick only
observed Brown for a month after the trial started, so she
didn’t know whether Brown completed the lithium trial. Dur-
ing the time she watched Brown, she saw at most a “little bit”
of “gradual change” in his behavior. After his release, Brown
chose to stop taking lithium before the amount he was given
on release ran out.

   [6] Counsel contacted Schick before trial, and decided not
to call her as a witness. Instead, they introduced Schick’s
notes and Dr. Maiuro discussed them during his testimony.
Counsel were surely not incompetent in making this use of
Schick’s evaluation of Brown, rather than having her take the
stand. Schick was not an M.D. or a Ph.D.; she was not like
Dr. Maiuro—a university professor and a widely-published
author in his field, who was viewed even by Dr. Brinkley as
highly competent. She was merely a licensed professional
counselor, who was not competent even to perform psycho-
logical testing. Indeed, an Oregon psychiatrist had explicitly
disagreed with her recommendation that Brown should take
lithium. Furthermore, had Schick testified, her testimony
would have been challenged on the same basis as Dr. Mai-
7612                  BROWN v. UTTECHT
uro’s, as she could not prescribe lithium. Worse yet, Schick
could have been impeached with treatment reports she filled
out after observing the first month of Brown’s trial, in which
she indicated that despite the lithium trial, there had been, at
worst, “no change” in his condition—and only “slight
improvement” at best. Plus, the prosecution could have forced
her to make various damaging concessions, including that she
had done nothing to determine whether Brown was malinger-
ing and that, even if her diagnosis was correct, manic disorder
does not “cause somebody to commit sexually violent
crimes.”

   [7] Counsel did not ignore or overlook the possibility of
calling Schick to the stand and made a reasonable judgment
to use her notes instead. We can’t say that this was unconsti-
tutionally deficient representation.

  c.   Cross-examination of Dr. Brinkley

   Brown argues that cross-examining Dr. Brinkley could
have established that he was biased because he didn’t inter-
view Brown before making his diagnosis, and forced Dr.
Brinkley to concede that Dr. Maiuro was competent to render
a psychological diagnosis.

   [8] We give “great deference” to “counsel’s decisions at
trial, such as refraining from cross-examining a particular wit-
ness.” See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000).
Applying that standard, we cannot say that defense counsel’s
decision was objectively unreasonable. Defense counsel were
prepared to cross-examine Dr. Brinkley, but they made the
tactical decision not to. Dr. Brinkley’s conclusions were based
solely on records from the Oregon prison, and defense coun-
sel’s theory was that Oregon officials had not properly treated
Brown’s mental disorder. Counsel therefore reasonably
believed that Dr. Brinkley’s testimony didn’t harm their
defense. By not cross-examining Dr. Brinkley, they avoided
the risk that his testimony would conflict with their own evi-
                      BROWN v. UTTECHT                    7613
dence, which showed that Brown had manic disorder. Dr.
Brinkley testified at the evidentiary hearing that he believed
Brown was not manic but was, instead, a sociopath. The jury
may not have bought defense counsel’s theory, but counsel
certainly weren’t unreasonable for advancing it, or for avoid-
ing any direct contradiction of it by not cross-examining Dr.
Brinkley.

   [9] The evidentiary record developed on habeas supports
defense counsel’s determination at trial that a cross-
examination of Dr. Brinkley “might well have backfired.”
Yarborough v. Gentry, 540 U.S. 1, 7 (2003) (per curiam).
Indeed, during oral argument before us, Brown’s habeas
counsel conceded that the cross-examination at Dr. Brinkley’s
deposition (which was taken for the district court’s evidenti-
ary hearing) could have hurt Brown’s mitigation case had it
been conducted at trial. See Oral Argument at 6:13. After all,
the record indicates that the prosecution did not have Dr.
Brinkley interview Brown because defense counsel was chal-
lenging his authority to do so. And, in any event, Dr. Brinkley
testified at the evidentiary hearing that he had no interest in
doing so, because he thought Brown was such a liar that any
interview would be pointless. Dr. Brinkley also testified that
the Oregon prison records were sufficient to diagnose Brown.
Furthermore, at the evidentiary hearing, Dr. Brinkley made
his view clear that, even if Brown were manic, he was not suf-
fering from a manic episode at the time he raped and mur-
dered Washa. Dr. Brinkley also testified that manic episodes
are not associated with the sort of premeditated behavior
Brown displayed. So even if Brown had been manic and on
lithium, the lithium would not, in his view, have prevented the
crime. It was reasonably foreseeable that Dr. Brinkley would
have come up with similarly damaging testimony if cross-
examined at trial. Brown’s counsel therefore weren’t deficient
for failing to cross-examine Dr. Brinkley. Rather, they made
a tactical decision, based on their theory of the case, not to
give Dr. Brinkley an opportunity to undermine that theory.
7614                   BROWN v. UTTECHT
   [10] 2. The district court didn’t abuse its discretion,
Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.
2004), in excluding the death penalty trial reports, which were
essentially summaries of other Washington death penalty
cases. Prior to the district court’s evidentiary hearing, the par-
ties were required to submit a pre-trial order identifying all
exhibits. Brown didn’t identify the reports in the pre-trial
order, and he didn’t offer them during the evidentiary hearing.
Instead, he presented the reports as attachments to his written
closing statement. The prosecution moved to strike the reports
and, not surprisingly, the district court granted the motion.

   [11] Even putting aside a district court’s broad “discretion
to exclude an exhibit not identified in the pretrial order,”
Swinton v. Potomac Corp., 270 F.3d 794, 809 (9th Cir. 2001),
evidence must surely be proffered by the time of the evidenti-
ary hearing, so that the other side can have a fair opportunity
to address or rebut it. The district court certainly did not abuse
its discretion in failing to consider evidence that was so
untimely.

                            *    *    *

   Brown’s counsel weren’t objectively deficient, as they
made reasonable strategic decisions by not calling a psychia-
trist, not calling Sally Schick and not cross-examining Dr.
Brinkley. The district court therefore correctly rejected
Brown’s ineffective assistance of counsel claim. Nor did the
district court abuse its discretion in excluding the death pen-
alty trial reports.

  AFFIRMED.



REINHARDT, Circuit Judge, dissenting:

  The majority errs in affirming the death sentence of Cal
Brown. Brown’s attorneys made a highly deficient presenta-
                      BROWN v. UTTECHT                     7615
tion regarding the most important aspect of his mitigation
case—that Brown suffered from a serious mood disorder that
was treatable with lithium. Had they performed at a level con-
sistent with the prevailing professional norms, the jury would
have been aware that with the proper medication, Brown
would have had greater control over his impulses and would
have been less likely to commit the crime. The jurors would
also have learned that with the proper treatment, Brown
would not be a threat in the future. I cannot say with confi-
dence that had the jury possessed this information it would
have voted unanimously to impose the death penalty.

   Despite Brown’s counsel’s knowledge that the medical
treatment of their client’s mental disorder would be critical to
their mitigation theory and despite the fact that counsel were
told by their own expert psychologist, Dr. Maiuro, that they
should retain a psychiatrist to testify on that subject, they
failed to do so. Instead, Dr. Maiuro remained their sole expert,
and he was forced to admit on the stand that he was not quali-
fied to prescribe medication and could not testify about
whether Brown’s disorder should be treated with lithium or
whether proper treatment might have prevented the crime.
Additionally, Brown’s attorneys failed to call his counselor
Sally Schick, the only mental health professional who had the
opportunity to observe and treat him for a sustained period of
time, and the one who first recommended that he receive lith-
ium treatment. Finally, Brown’s attorneys failed to cross-
examine Dr. Brinkley, the State’s expert psychiatrist, after his
devastating testimony that Brown did not have any disorder
that could be treated with lithium; by implication, Dr. Brink-
ley suggested that Brown did not have a serious mental disor-
der and that no medical treatment of any kind could have had
a positive effect on his conduct. Moreover, because of coun-
sel’s failure to cross-examine Dr. Brinkley, the jury did not
learn that his testimony was based on his examination of
Brown’s prison records alone. The prosecutor took advantage
of Brown’s counsel’s ineptitude and seriously undermined the
case for mitigation by emphasizing in his closing argument
7616                  BROWN v. UTTECHT
the lack of qualifications of Brown’s expert and reminding the
jury that Dr. Brinkley’s testimony had not been challenged.

   Brown’s counsel’s deficient performance prejudiced him
because the jury never heard the most convincing argument
for why their client’s life should be spared. Brown’s mitiga-
tion case consisted of two related contentions. The first was
that he had a mental disorder. If defense counsel had put on
a proper case to try to persuade the jury that Brown suffered
from a serious mental illness, at least some of the jurors might
have understood his crimes to be a manifestation of that disor-
der and perceived him to have had less control over his hei-
nous acts than a mentally healthy person.

   The second part of the mitigation theory was that Brown’s
disorder could have been effectively managed medically with
lithium. The lithium issue is important because it reinforces
the mental illness argument and because it illustrates the
extent to which Brown’s actions were influenced by that dis-
order. Lithium is a strong medication that is closely linked to
serious mental illness in the popular consciousness. Any dis-
order that required lithium treatment might have been consid-
ered quite severe in the eyes of the jurors. Thus, they could
more readily have understood that the defendant’s conduct
was influenced by a mental disorder that could be treated
medically. If the jurors had heard the testimony of a psychia-
trist like Dr. Scher, who would have said that lithium would
have made Brown less likely to commit the crime, at least
some of them might have attributed less of the blame for the
crime to Brown’s character and more of it to his physiological
condition. Additionally, although the issue of future danger-
ousness was never argued at trial, the jury likely would have
taken into account that if Brown were properly treated, he
would no longer pose as great a threat to society. Counsel’s
deficient performance prejudiced Brown because it rendered
both prongs of the mitigation theory unconvincing. There is
no question that defense counsel failed to prove the second
part of the mitigation case—that Brown’s illness could be
                      BROWN v. UTTECHT                     7617
effectively treated with lithium and that such treatment would
have made Brown less likely to commit crimes. The defense’s
only expert witness admitted that he was unqualified to testify
about lithium. The State emphasized this in cross-examination
and in its closing argument and its expert testified that Brown
did not have a disorder that could be treated with lithium. The
jury had no choice but to conclude that lithium would have
had no effect on Brown, despite counsel’s claim to the con-
trary in his opening statement.

   Defense counsel’s deficient performance also undermined
the first claim—that Brown had a serious disorder. Brown’s
lawyers failed to cross-examine Dr. Brinkley and thus
allowed the prosecutor to argue to the jury that the defense
must agree with Dr. Brinkley’s assessment that Brown did not
suffer from any disorder that could be treated with lithium.
Without cross-examination, the jury was not informed of the
fact that Dr. Brinkley had never met with Brown, as is cus-
tomary before diagnosing mental disorders, and that he did
not review all of Brown’s records including those that con-
tained information that he later admitted could have been
important to his diagnosis. All it heard was that Dr. Brinkley
concluded that Brown did not have a mental illness that would
warrant treatment with lithium and that, as the prosecution
argued, the defense did not challenge that conclusion. The
jury was also told by the prosecutor, with considerable effec-
tiveness, that Dr. Maiuro was not qualified to testify regarding
lithium. The jury might well have concluded that if Dr. Mai-
uro was not as qualified as Dr. Brinkley to testify about lith-
ium, he was not as qualified to testify about mental disorders
in general. Given Dr. Brinkley’s unimpeached testimony and
the lengthy and contentious cross-examination of Dr. Maiuro,
the jury likely credited Dr. Brinkley’s testimony over Dr.
Maiuro’s and may have concluded that Brown did not suffer
from a mental disorder at all. In reality, the absence of a
defense psychiatrist and the failure to cross-examine Dr.
Brinkley resulted in the almost total undermining of defen-
dant’s mental illness mitigation argument. Even if the jury
7618                    BROWN v. UTTECHT
believed that Brown had psychological problems, they likely
assumed that his disorders could not have been particularly
severe if they did not require any lithium treatment. (No one
suggested that any other form of medical treatment would
have been appropriate.)

   There is a reasonable probability that if defense counsel
had presented the testimony of a psychiatrist, as well as that
of Brown’s counselor, and if they had cross-examined Dr.
Brinkley, they would have raised a sufficient question in the
mind of at least one juror as to whether Brown suffered from
a serious mental disorder that could have been controlled with
medical treatment, and that at least one juror would have con-
cluded that the prosecution had not proven beyond a reason-
able doubt that there were no sufficient mitigating
circumstances to warrant the imposition of a life sentence.
Counsel’s failures prejudiced Brown by casting substantial
doubt on the most important aspect of his mitigation case.
Such a deficient and prejudicial performance severely under-
mines one’s confidence in the outcome of the penalty pro-
ceeding. I would reverse Brown’s death sentence so that the
state could re-try the penalty phase or impose a sentence of
life without parole.

I.   Failure to Call a Psychiatrist

   Brown’s defense counsel knew that the lithium issue would
be an important part of their case, and their expert witness,
Dr. Maiuro, a psychologist, advised them that he was not
qualified to testify about lithium. He recommended that they
retain a psychiatrist who was. Nevertheless, Brown’s lawyers
not only failed to obtain the services of a psychiatrist to testify
as an expert at the penalty phase, they never even consulted
one. This failure was objectively unreasonable under then-
applicable prevailing professional norms.

  According to the ABA Guidelines at the time of trial, in
preparation for the penalty phase, counsel should consider,
                        BROWN v. UTTECHT                       7619
“expert witnesses to provide medical, psychological, socio-
logical or other explanations for the offense(s) for which the
client is being sentenced, to give a favorable opinion as to the
client’s capacity for rehabilitation, etc. and/or to rebut expert
testimony presented by the prosecutor.”1 Defense counsel’s
primary mitigation argument at the penalty phase was that
Brown suffered from a mood disorder for which he did not
receive adequate medical treatment—treatment that could
have lessened his symptoms and improved his impulse con-
trol. The testimony of a psychiatrist was necessary to show
that Brown’s disorder could have been effectively managed
medically and to rebut the testimony of Dr. Brinkley that
Brown did not suffer from a mood disorder for which lithium
was appropriate.

   Counsel was on notice that a psychiatrist would be needed
to testify about the proper medical treatment of Brown’s dis-
order. Lin Marie Hupp, one of Brown’s attorneys, testified at
the evidentiary hearing that defense counsel understood the
importance of the lithium issues because “[h]aving something
that is physiologically based is sometimes easier for jurors to
understand . . . that you can give somebody a pill for and fix
them is sometimes easier for jurors to understand than just . . .
the person is a bad person.” Hupp’s testimony demonstrates
that the lawyers understood that if they showed that Brown’s
disorder could be medically treated, it would enable the jurors
to comprehend the seriousness of the disorder, understand that
it contributed to his conduct, and thus recognize its mitigating
effect. Additionally, William Schipp, the staff social worker,
explained to Brown’s attorneys the difference between psy-
chologists and psychiatrists, so they understood that Dr. Mai-
uro, a psychologist, would be unable to testify about the
proper medical treatment of Brown’s disorder. Moreover, Dr.
Maiuro personally advised the defense that he was unable to
  1
  American Bar Association Guidelines for the Appointment and Perfor-
mance of Counsel in Death Penalty Cases, 11.41(C) (1989), http://
www.abanet/org/deathpenalty/resources/docs/1989Guidelines.pdf.
7620                   BROWN v. UTTECHT
testify about medical matters, recommended that they consult
a psychiatrist, and gave them referrals. Perhaps the best evi-
dence that defense counsel understood that it was crucial for
them to hire an expert psychiatrist is the fact that they
attempted to do so when, after receiving Dr. Maiuro’s advice,
they contacted Dr. Brinkley and tried to enlist his services.

   At the evidentiary hearing, none of the defense attorneys
offered a reason for their failure to seek a psychiatrist either
months before trial or after Dr. Brinkley informed them that
he was unavailable because he was testifying for the State.
Kern Cleven testified that he and his colleagues knew about
Brown’s mood disorder six to eight months before trial and
that “we were aware that we would like to have another kind
of an expert . . . a psychiatrist.” When Cleven was asked why
they did not contact one, he said: “I can’t for the life of me
think of why it was that late in the game and we didn’t have
a psychiatrist on board yet. I wish I could provide you with
a reason why that was, I just can’t.” He also recalled that there
was no impediment to contacting another psychiatrist to tes-
tify once they knew that Dr. Brinkley was unavailable. Terry
Lee Mulligan testified that he did not recall there being “a
specific decision made” or “conversations about” consulting
any other psychiatrists.

   Given the overwhelming evidence that defense counsel
knew that it was necessary to consult a psychiatrist and pre-
sent his expert testimony in order to establish that Brown had
a disorder that could and should have been treated with lith-
ium, and given that counsel can offer no reason why they
failed to consult and present the testimony of a psychiatrist,
I would hold that counsel’s failure to retain such an expert
was unreasonable under existing professional norms at the
time and thus amounted to deficient performance under
Strickland v. Washington, 466 U.S. 668 (1984).

  The majority suggests strategic justifications for defense
counsel’s decision not to present the testimony of a psychia-
                       BROWN v. UTTECHT                     7621
trist at the penalty phase. Although we are highly deferential
to counsel’s strategic decisions at trial, Strickland, 466 U.S.
at 689, counsel did not advance at the evidentiary hearing any
of the explanations the majority gives for their failures. When
counsel is unable to provide us with strategic reasons for trial
decisions, we are not permitted to engage in “post hoc ratio-
nalization.” Wiggins v. Smith, 539 U.S. 510, 526-27 (2003).
Instead, we must evaluate counsel’s performance by the stan-
dard established in Strickland—“reasonableness under pre-
vailing professional norms.” Strickland, 466 U.S. at 688.
Because there is no reasonable explanation for counsel’s fail-
ure to consult and retain a psychiatrist, the majority’s
attempted rationalizations are unavailing.

   The majority claims that defense counsel decided that they
would hire a psychologist instead of a psychiatrist because “a
psychiatric evaluation wouldn’t provide as much useful infor-
mation as a psychological evaluation.” Maj. Op. at 7607. This
is a puzzling conclusion given that defense counsel knew well
in advance of trial that Brown’s medical treatment for his
mental illness would be a critical mitigation issue and a psy-
chologist would not be qualified to testify on that subject.
Moreover, at the habeas corpus evidentiary hearing, Schipp
testified that initially defense counsel decided to pursue a psy-
chological evaluation for the reason cited by the majority.
However, he offered no explanation as to why, after psycho-
logical testing showed that Brown had a mental disorder that
could be treated with lithium, counsel did not consult a psy-
chiatrist. At that point, all of the psychological tests in the
world could not have produced the one “useful” piece of evi-
dence that was necessary—expert testimony that Brown’s dis-
order could and should be treated with lithium. Additionally,
the fact that defense counsel attempted to hire Dr. Brinkley
belies the explanation that they did not believe a psychiatrist
would be useful.

  Nor, as the majority suggests, did Brown’s defense counsel
decide not to seek an expert psychiatrist in order to avoid a
7622                       BROWN v. UTTECHT
continuance. Maj. Op. at 7609. None of Brown’s lawyers tes-
tified that seeking another psychiatrist would have required a
continuance; indeed the first time this explanation was offered
was in the State’s appellate brief—unsurprisingly with no
citation to the record.2 Moreover, no one suggests any reason
why seeking another psychiatrist would have required a con-
tinuance. Defense counsel sought to obtain Dr. Brinkley’s ser-
vices for the penalty phase on the first day of the guilt phase
proceeding. Either they believed that they could hire Dr.
Brinkley at that time to testify as an expert witness without
creating a need for a continuance, or they believed that the
testimony of an expert psychiatrist was more important than
the timing of the penalty phase. If it was the latter, then failing
to contact another psychiatrist after Dr. Brinkley advised them
of his unavailability was obviously unreasonable. If it was the
former, there is no reason why a different psychiatrist would
have required more time than Dr. Brinkley. In that case, no
continuance would have been necessary at all had they acted
promptly. In any event, the psychiatrist whose services
defense counsel obtained would not have had to testify until
the penalty phase. Counsel could have contacted a different
psychiatrist on the same day that Dr. Brinkley refused and
that psychiatrist would have had just as much time to prepare
his testimony as Dr. Brinkley. Nothing about Dr. Brinkley’s
refusal of the request to serve as a defense witness raised any
question as to the need for a psychiatrist or as to the merits
of the mitigation argument. He simply advised counsel that he
was unavailable because he had been hired by the prosecu-
tion. This should, if anything, have made it even more obvi-
ous that the defense needed a psychiatrist of its own.

  Even had defense counsel believed that they would have
been required to seek a continuance, this belief was not sup-
  2
   Defense counsel considered seeking a continuance for unrelated rea-
sons at one point during the trial, but the decision to obtain Dr. Brinkley’s
services (or those of some other psychiatrist) did not prompt them to con-
sider one.
                      BROWN v. UTTECHT                     7623
ported by any inquiry on their part. According to Schipp,
defense counsel did not request him to contact any other psy-
chiatrists to ask whether they could be ready in time. Mulli-
gan also testified that his records indicated no further attempt
to contact any psychiatrist after he learned that Dr. Brinkley
was unavailable, although Dr. Maiuro testified that he proba-
bly recommended a few psychiatrists to defense counsel. Dr.
Maiuro also stated that the defense did not contact him for
additional referrals. The testimony shows that defense counsel
abandoned their search for a psychiatrist after their first call
to Dr. Brinkley failed, and that they did not inquire into
whether another psychiatrist would be available or whether
there would have been a need for a continuance. “[S]trategic
choices made after less than complete investigation are rea-
sonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Strick-
land, 466 U.S. at 691.

   Although the evidence overwhelmingly shows that defense
counsel’s failure to hire a psychiatrist was not due to their
desire to avoid a continuance, even if that had been their
explanation, it would have been unreasonable. The majority
argues that the defense wanted the jury to deliberate over the
Christmas holiday and wanted to give the State less time for
penalty phase preparation. Maj. Op. at 7609. As a preliminary
matter, Cleven’s testimony reveals that these were minor con-
cerns at most. He testified that the Christmas holiday was “a
silly point” and “not a major consideration for us.” He also
admitted that “there was nothing remotely scientific” about
the speculation that the jury might be more merciful over the
Christmas holiday and there were no “focus groups or trial
jurors or anything else” that supported any such thesis. If the
Christmas holiday were a major consideration, which it was
not, the defense’s armchair juror psychology would not be
entitled to deference because it was not the result of proper
investigation. Additionally, Cleven testified that he did not
think that giving the State more time to prepare was “much
of a consideration.”
7624                   BROWN v. UTTECHT
   The majority also claims that defense counsel did not call
another psychiatrist because they feared that he would render
an unfavorable opinion and did not want to take the risk that
they would be compelled to turn over a damaging report to
the State. Maj. Op. at 7608-09. Not only is that argument
unsupported by the record because no defense attorney testi-
fied that fear of an unfavorable report was the reason for their
decision, but it is also nonsensical given that the lawyers actu-
ally attempted to hire Dr. Brinkley. The majority does not
explain why counsel would try to hire Dr. Brinkley with no
concern that he would render an unfavorable opinion, but,
after he informed them that the State had hired him, would
suddenly develop fears of a damaging diagnosis and elect not
to contact another psychiatrist. Moreover, the record shows
that defense counsel had a policy not to obtain a written report
from their experts precisely in order to avoid such unwanted
discovery and potential impeachment on cross-examination.
That policy is a far more reasonable (and constitutional) way
of handling the risk of potentially unfavorable written opin-
ions from experts than simply avoiding experts altogther.

   In short, the decision not to call a psychiatrist was not the
result of reasoned strategic decisions, no matter how many
illogical post-hoc rationalizations the State and the majority
may advance. See Wiggins, 539 U.S. at 526-27 (“The ‘strate-
gic decision’ the state courts and respondents all invoke to
justify counsel’s limited pursuit of mitigating evidence resem-
bles more a post-hoc rationalization of counsel’s conduct than
an accurate description of their deliberations prior to sentenc-
ing.”) Defense counsel’s failure to call an expert in psychiatry
was, as the Supreme Court once put it, “the result of inatten-
tion, not reasoned strategic judgment.” Id. at 534. Conse-
quently, I would hold that Brown’s defense attorneys’
performance was deficient in this respect.

   I would also hold that Brown was prejudiced by his coun-
sel’s performance. The lack of expert testimony from a psy-
chiatrist had a devastating impact on Brown’s mitigation
                      BROWN v. UTTECHT                       7625
efforts at the penalty phase. In the defense’s opening state-
ment, Cleven told the jurors that Dr. Maiuro would explain to
them how Brown’s disorder was “not properly diagnosed or
properly treated.” However, after the State’s highly damaging
cross-examination of Dr. Maiuro, and the testimony of Dr.
Brinkley, in which he testified that Brown did not have a
mental disorder that required lithium treatment, and without
an expert psychiatrist of his own, Mulligan had no choice but
to concede in his closing argument that the defense had not
shown that Brown should have been treated with lithium, the
only treatment it had suggested.

  Moreover, during his closing argument, the prosecutor was
able to undermine Dr. Maiuro’s testimony by arguing:

    Dr. Maiuro really didn’t have enough information to
    be able to talk about whether the defendant should or
    should not have been on lithium . . . Dr. Maiuro is
    not a medical doctor, so he does not prescribe lith-
    ium to people. He does not have to make the medical
    analysis of whether lithium is appropriate. That’s not
    part of his role as a psychologist. So he was kind of
    out on a limb in that part of his testimony. And I
    think you recognized that once you heard from Dr.
    Brinkley.

   Dr. Scher’s testimony at the evidentiary hearing in the
habeas proceeding demonstrates how helpful a properly quali-
fied psychiatrist would have been for the defense: such a wit-
ness would have corroborated Dr. Maiuro’s testimony that
Brown suffered from a serious mood disorder and rebutted
Dr. Brinkley’s conclusions regarding lithium. As to the first,
Dr. Scher testified that based on her personal interview of
Brown and review of his records, Brown suffered from bipo-
lar disorder. She also testified that Schick and Dr. Maiuro’s
diagnoses of Brown as manic were consistent with her diag-
nosis. As to the second, Dr. Scher testified that if Brown had
been taking lithium prior to the murder, it “would have con-
7626                      BROWN v. UTTECHT
trolled the degree of impulsivity and the amount of stimula-
tion he had.” Dr. Scher testified that it was her opinion that
if Brown had been on lithium and properly treated, he would
have been “less likely” to have committed the murder.

   Dr. Scher’s testimony also could have been used to
impeach Dr. Brinkley because she testified that psychiatrists
are supposed to do a personal interview before making a diag-
nosis and noted that Dr. Brinkley had failed to do so. Dr.
Scher also testified that Dr. Brinkley unreasonably dismissed
the fact that prior treatment providers had diagnosed Brown
as manic depressive.3

   The majority argues that defense testimony by an expert
psychiatrist would not have significantly changed the mitiga-
tion case because Dr. Brinkley’s testimony did not undermine
the defense’s central theory and did not directly contradict Dr.
Mauiro’s diagnosis. Maj. Op. at 7608. As explained above,
however, this is simply not correct. Dr. Brinkley’s unchal-
lenged testimony cast doubt over the entire mental illness
argument by undermining Dr. Mauiro’s diagnosis and elimi-
nating from consideration the lithium issue, which was the
most tangible way for the jury to understand the magnitude of
Brown’s illness. Dr. Brinkley did not have to contradict Dr.
Mauiro’s diagnosis directly or challenge any of the testimony
about Brown’s family background: the doubts he raised about
Brown’s mental disorder and his undisputed testimony about
lithium were enough to devastate the mitigation theory.

   In this case, defense counsel’s failure to call a psychiatrist
left the jury with no opportunity to consider the role that med-
  3
   We need not belabor the point that the majority raises of whether Dr.
Brinkley was more qualified than Dr. Scher because we have no way of
knowing which psychiatrist defense counsel would have found. Maj. Op.
at 7610. Even if Dr. Brinkley had a longer curriculum vitae than the
defense’s psychiatrist, the fact that the defense expert would have inter-
viewed Brown would have more than made up for whatever credential
deficit there may have been.
                       BROWN v. UTTECHT                     7627
ical treatment with lithium could have played in controlling
Brown’s behavior, nor did the jurors hear any contradiction of
Dr. Brinkley’s devastating testimony that Brown did not have
any disorder that could be treated with lithium. There is a rea-
sonable probability that, had the jury heard the testimony of
a psychiatrist, like Dr. Scher, who would have testified that
Brown did have a mental disorder and that lithium treatment
would have made him less likely to commit the crime with
which he was charged, at least one juror would have con-
cluded that Brown’s treatable disorder was a mitigating cir-
cumstance that warranted a life sentence rather than death
under Washington law.

II.   Failure to Call Schick

   Schick is an experienced professional counselor who is
licensed to make psychological diagnoses and who observed
and treated Brown at the Oregon state prison for over two
years. Of all the potential witnesses who were available to the
defense at the time of trial, she was the only one who had wit-
nessed the impact of lithium treatment on Brown. Neverthe-
less, none of Brown’s attorneys—only an investigator—
interviewed Schick and Schick was never asked to testify at
the penalty phase.

   At the evidentiary hearing, Schick testified that she had ini-
tially diagnosed Brown with bipolar disorder, but upon further
observation revised her diagnosis to unipolar disorder because
Brown did not appear to experience the severe depressive epi-
sodes that are characteristic of bipolar disorder. She requested
a lithium trial to stabilize Brown’s mood disorder and noticed
an improvement in the month that she observed him on the
drug. According to Schick, Brown “was able to focus longer
and less likely to preoccupy himself with some of those gran-
diose thoughts.” In her declaration, Schick stated that she “be-
lieve[s] that this tragedy might have been averted if Brown’s
mental health treatment had been started sooner and his medi-
cation monitored more carefully.”
7628                   BROWN v. UTTECHT
   The majority claims that counsel made a reasoned decision
not to call Schick because her qualifications were not as
impressive as those of Dr. Maiuro, and because she, like Dr.
Maiuro, could not prescribe lithium. Maj. Op. at 7611-12.
Again, the majority’s rationalizations for defense counsel’s
failings are not supported by the record. In fact, the failure to
call Schick was a result of inattention, not strategy.

   Lauren Sonik, a defense investigator, spoke with Schick a
few months before trial began. None of Brown’s attorneys,
however, ever spoke with her. Mulligan did not remember
making a “specific tactical decision not to call Ms. Schick as
a witness at the penalty phase.” Cleven testified that he and
his colleagues never “interviewed her closely as a potential
witness” and could not “recall what considerations there were
in deciding not to call her as a witness.” Hupp remembers
“positive things” about Schick and remembers that she was
exactly the sort of witness with the kind of information the
defense was looking for. Hupp, like the others, did not
remember why they did not call her. Thus, the majority’s
speculative explanation for defense counsel’s failure to call
Schick to testify has no basis in fact and is not supported by
the record or the recollections of the attorneys.

   Moreover, the majority’s post-hoc rationalizations are
unreasonable. First, the argument that Dr. Maiuro was better
suited to testify because he has more degrees and professional
accomplishments misses the point. Schick should have been
called also, not because of her long curriculum vitae, but
rather because of her unique experience with Brown. She was
the only counselor who frequently observed and treated
Brown over a period of time, observed his progress on lith-
ium, and the only witness who could have projected the effect
of further treatment. Thus, she was the best person to testify
about Brown’s responsiveness to medical treatment. Despite
the fact that Schick’s notes were read to the jury by Dr. Mai-
uro, the scant observations contained in them were no substi-
                       BROWN v. UTTECHT                     7629
tute for the detailed testimony that Schick could have given
about her personal experience with Brown.

   The majority’s second explanation—that Schick was not a
medical doctor and thus not qualified to prescribe lithium—is
also contrary to reason and logic. First, that was clearly not
counsel’s actual reason for not calling Schick, given that it did
not deter them from calling Dr. Maiuro. More important,
however, Schick would not have been called to testify about
whether Brown should have been prescribed lithium. As
explained above, she would have been asked about the change
in Brown’s behavior once he began taking the drug. Her abil-
ity to prescribe medication has nothing to do with her ability
to observe and evaluate a patient who is on medication.

   Brown’s counsel’s failure to call Schick was not the result
of a reasoned tactical decision; it was, rather, another failure
properly to prepare the case for trial. Although Schick could
have been a critical witness, no lawyer followed up on the
investigation and interviewed her to determine how valuable
her testimony might be. Thus, it would have been impossible
for counsel to make an informed strategic decision not to call
her. Counsel’s representation fell below professional stan-
dards when they decided not to call Schick to testify at the
penalty phase without interviewing her and without sufficient
information to make an informed decision. Accordingly, I
would hold that this decision also constituted deficient perfor-
mance.

   Schick’s testimony would have corroborated Dr. Maiuro’s
testimony and directly rebutted Dr. Brinkley’s claim that there
was nothing in Brown’s record that suggested he suffered
from a mental disorder that could be treated with lithium.
Unlike Dr. Maiuro or Dr. Brinkley, Schick could have pro-
vided first-hand testimony about the effect of lithium on
Brown.

  Because she did not testify, the jury heard about Schick
only through the testimony of Dr. Maiuro and Dr. Brinkley.
7630                      BROWN v. UTTECHT
Dr. Maiuro testified that, according to the prison records,
Schick concluded that the treatment program resulted in “no
change” in Brown. Dr. Brinkley also testified that Schick
“said in her summary statement of [Brown’s] course of treat-
ment with her that she saw no change.”

   The record reveals, however, that had the defense called
her to testify, Schick would have told the jury that Brown
improved on lithium. In her declaration, filed in the habeas
proceeding, Schick stated that she had “noticed a marked
improvement in Brown’s symptoms” once his lithium treat-
ment began in Oregon state prison. She noted that Brown’s
“internal energy was immediately decreased” and that he
“was able to think and plan better.” Schick also declared that,
had she been called to testify, she would have stated that it
was her “firm professional belief that Brown had a major psy-
chiatric disorder that was never effectively treated” and that
“this tragedy might have been averted” if Brown’s medication
had been properly administered and monitored.

   At the evidentiary hearing, Schick testified that during the
month Brown was on lithium she observed “a gradual
change” as Brown was “less likely to preoccupy himself with
some of those grandiose thoughts.” She also testified that she
saw some indication of the remission of Brown’s symptoms
after he was placed on the lithium trial. Thus, her testimony
could have impeached Dr. Brinkley’s conclusion that Schick
had observed no change in Brown as a result of his lithium treat-
ment.4 I would hold that, standing alone, counsel’s failure to
   4
     It appears that the basis for Dr. Maiuro and Dr. Brinkley’s testimony
that Schick did not notice any change in Brown on lithium was a single
checked box on a case summary report dated June, 1993. This was three
years after Schick stopped seeing Brown. According to the defense inves-
tigator’s notes, Schick was leaving the prison at that time but before she
left she had to go through all of her old files and close all of her cases.
This is probably why she completed the report about Brown at such a late
date. Although she did check the box that read “no change,” her notes in
the report indicate that the lithium was working, which is consistent with
Schick’s declaration and testimony at the evidentiary hearing. Schick’s
testimony would have dispelled any doubts that might have been raised by
the hastily checked “no change” box in the report.
                      BROWN v. UTTECHT                     7631
call Schick prejudiced Brown, or, at the very least, that he was
prejudiced when that failure is considered in conjunction with
counsel’s failure to call a psychiatrist as an expert witness.

III.   Failure to Cross-Examine Dr. Brinkley

   Brown’s defense lawyers elected not to cross-examine Dr.
Brinkley after he testified that Brown did not have a mental
disorder for which lithium could be prescribed. As a result,
the jury never heard that Dr. Brinkley made his evaluation
and rendered his opinion without ever interviewing Brown,
Brown’s family, or any of the doctors and therapists who had
treated him in the past. Moreover, the jury never heard that
Dr. Brinkley’s review of Brown’s records was incomplete and
that he had no knowledge of many aspects of Brown’s back-
ground that are significant to diagnosing mood disorders.

   The majority claims that Brown’s attorneys made a tactical
decision not to cross-examine Dr. Brinkley. Maj. Op. at 7612.
That a decision can be labeled “tactical,” however, does not
end the Strickland inquiry. Rather, “a reviewing court must
consider the reasonableness of the investigation said to sup-
port that strategy.” Wiggins, 539 U.S. at 527 (citing Strick-
land, 466 U.S. at 691). Counsel performs inadequately at the
penalty phase when he makes a tactical decision based upon
inadequate investigation. See Wiggins, 539 U.S. at 536. Here,
there is no evidence that the decision not to cross-examine Dr.
Brinkley was based on a reasonable investigation.

   Cleven testified that he was prepared for the cross-
examination and thought that it was important for the jury to
hear concessions from Dr. Brinkley about the limited infor-
mation upon which he based his testimony. During a break in
the testimony, however, Mulligan, the lead attorney, ordered
him not to conduct cross-examination. Cleven reported that
Mulligan told him that “he had seen cross-examinations back-
fire” and that the points that Cleven wanted to get out in
cross-examination could be made in the closing argument.
7632                   BROWN v. UTTECHT
Mulligan admitted that he played no role in preparing to
cross-examine Dr. Brinkley because the doctor was Cleven’s
witness, nor did he attend the short interview that the other
two defense attorneys conducted with Dr. Brinkley on the
morning of his testimony. Thus, Mulligan did not know in
advance that Dr. Brinkley would testify that Brown did not
have a disorder for which lithium should be prescribed and
that Brown did not benefit from his lithium treatment at the
Oregon state prison. If, like Cleven, Mulligan had played a
role in preparing for cross-examination and if he, like Cleven,
had been present at the interview with Dr. Brinkley, he likely
would have come to the same conclusion as Cleven—that
cross-examining Dr. Brinkley “would not pose any risk to [the
case] at all” and indeed would likely result in answers that
would “seriously call his testimony into question.” Addition-
ally, Mulligan would have known that the points that Cleven
wanted to make on cross-examination, namely that Dr. Brink-
ley made his assessment of Brown without interviewing him
personally and on the basis of an incomplete review of
Brown’s record, could not be made during the closing argu-
ment without first establishing their factual basis by question-
ing Dr. Brinkley. Instead, Mulligan made an uninformed, on-
the-spot decision and forbade Cleven from conducting the
cross-examination that might have helped save Brown’s life.
As Cleven testified at the evidentiary hearing, the decision not
to cross-examine Dr. Brinkley was not an informed one and
it was not based on reasonable consideration of its merits and
possible drawbacks. We need not defer to Mulligan’s hasty
decision because it was made without the benefit of adequate
investigation and thus fell below prevailing professional stan-
dards. I would hold that the decision not to cross-examine Dr.
Brinkley constituted deficient performance.

  Dr. Brinkley’s testimony was quite prejudicial to Brown’s
mitigation case. At trial, Dr. Brinkley testified that he did not
see anything in the Oregon state prison records that explained
why lithium was prescribed for Brown and that he “had no
                      BROWN v. UTTECHT                    7633
clear indication from the records [he] reviewed that [Brown]
had a disorder for which lithium was appropriate.”

  As a result of defense counsel’s failure to cross-examine
Dr. Brinkley, the prosecutor was able to argue in his closing
argument that:

    Apparently, the defense didn’t dispute any of the
    findings of Dr. Brinkley. They never asked him
    questions. They apparently were satisfied with his
    expertise and his findings.

   The habeas evidentiary hearing confirms that if Cleven had
cross-examined Dr. Brinkley, the jury would have heard that
Dr. Brinkley never conducted an interview with Brown and
that he did not review all of the records about Brown’s life
history that Dr. Maiuro reviewed. In Dr. Brinkley’s deposi-
tion, taken prior to the evidentiary hearing, Brown’s counsel
asked him about several pieces of information from Brown’s
family history that Dr. Brinkley did not review prior to testi-
fying at trial. Dr. Brinkley acknowledged that some of the
information from Brown’s childhood that he did not review
was “potentially relevant” to the diagnostic question of
whether he suffered from a mood disorder. He stated that had
he been aware that Brown’s mother had a mood disorder, it
would have been relevant to his diagnosis. He admitted that
he did not know that Brown started seeing a psychiatrist at
age seven, and that his evaluation would have been “more
complete” if he had seen the records of the psychiatrist who
treated Brown as a child. He also said he did not know that
Brown had been diagnosed with cyclothymic disorder in 1982
and that it “would have been of interest” to him since cyclo-
thymic disorder may precede bipolar disorder. Moreover, he
testified that the behavioral patterns Schick observed in
Brown at the state prison are “consistent” with a mood disor-
der. This testimony all demonstrates that cross-examination
would have revealed to the jury that Dr. Brinkley’s assess-
7634                       BROWN v. UTTECHT
ment was based upon an incomplete review of Brown’s rele-
vant mental health history and family background.

   The majority claims that cross-examination of Dr. Brinkley
would have backfired because he testified at the evidentiary
hearing that Brown did not have manic syndrome, but instead
was a sociopath. However, there is no suggestion that defense
counsel intended to ask Dr. Brinkley for his diagnosis of
Brown on cross-examination. Cleven planned to ask Dr.
Brinkley whether he interviewed Brown and whether he
reviewed all of the relevant records. Moreover, Dr. Brinkley’s
testimony on cross-examination would not have damaged
Brown any more than his testimony on direct. On direct, he
explained at length that lithium was used to treat mood disor-
ders including bipolar disorder and manic symptoms. He then
testified that Brown did not suffer from a disorder that could
be treated with lithium. The conclusion that the jury naturally
reached using elementary logic is that Dr. Brinkley believed
that Brown did not have manic syndrome or any other mood
disorder. Dr. Brinkley was an experienced witness. Had he
wanted to say explicitly that Brown did not have any mood
disorder or had he been willing to offer a different diagnosis,
he surely would have done so on direct. There was no need
to wait for cross or redirect.5

  The majority also argues that had he been cross-examined,
Dr. Brinkley would have revealed that defense counsel were
challenging his authority to interview Brown. Maj. Op. 7613.
First, this contradicts the majority’s other claim that Dr.
  5
    The majority also notes that at oral argument, counsel conceded that
had Dr. Brinkley testified as he did in his habeas deposition, it would have
been unhelpful to Brown. Maj. Op. at 7613. However, there is no indica-
tion that defense counsel intended to ask the questions that would have
elicited this unhelpful testimony. Cleven testified that he was prepared to
ask Dr. Brinkley whether he interviewed Brown and whether he reviewed
all of the relevant background materials before reaching his conclusions.
He gave no indication that he would have asked Dr. Brinkley to render a
complete diagnosis.
                      BROWN v. UTTECHT                    7635
Brinkley would have said that he had no interest in interview-
ing Brown because Brown was a liar. Maj. Op. at 7613. The
majority cannot have it both ways. Second, the record does
not indicate that defense counsel refused to permit an inter-
view with Brown. The defense objected to the State’s attempt
to have Dr. Brinkley observe Brown’s demeanor in the court-
room, but it invited the State to make a motion allowing Dr.
Brinkley to interview him. The State failed to do so.

    It is more likely that the majority’s other explanation for
Dr. Brinkley’s failure to interview Brown is accurate — that
Dr. Brinkley did not think it was necessary because he
thought that Brown was a liar. Maj. Op. 7613. This is a puz-
zling excuse for Dr. Brinkley to affirm given that he relied
solely on the notes of other professionals who interviewed
Brown. Perhaps he believed them to be better at detecting lies
than he. Regardless, even if Dr. Brinkley denied the value of
a personal interview, it does not mean that the jury’s assess-
ment of his testimony would not have been affected by learn-
ing that he did not interview Brown. Moreover, the
evidentiary hearing revealed that cross-examination would
have enabled the defense to elicit from Dr. Brinkley the con-
cession that he thinks clinical psychologists are “competent to
make psychiatric diagnoses” and that he has worked with Dr.
Maiuro in the past and considers him to be “a competent prac-
titioner.” This concession would have mitigated the damage
done by the State’s cross-examination of Dr. Maiuro in which
the psychologist was forced to admit that he was not qualified
to prescribe lithium and by the State’s closing argument in
which the prosecutor commented that Dr. Maiuro was “out on
a limb.”

   There is a reasonable probability that, had the jury heard
that Dr. Brinkley never interviewed Brown, did not review the
same records as did Dr. Maiuro, and believed that Dr. Maiuro
was competent to render an opinion, at least one juror would
have given far greater weight to the opinions of Dr. Maiuro
with respect to the question whether Brown’s mental disorder
7636                  BROWN v. UTTECHT
and the lack of lithium should be considered to constitute a
mitigating factor.

IV.    Cumulative Error

   The three aspects of counsel’s deficient performance,
viewed together, should undermine one’s confidence in the
outcome of the penalty phase. Multiple errors, even if harm-
less individually, may entitle a petitioner to habeas relief if
their cumulative effect prejudiced the defendant. Mak v. Blod-
gett, 970 F.2d 614, 622 (9th Cir. 1992), cert. denied, 507 U.S.
951 (1993); see also United States v. Tucker, 716 F.2d 576,
595 (9th Cir. 1983); Cooper v. Fitzharris, 586 F.2d 1325,
1333 (9th Cir. 1978) (en banc) (holding that “prejudice may
result from the cumulative impact of multiple deficiencies”).

   Defense counsel’s errors resulted in the failure adequately
to present Brown’s strongest mitigation argument. The failure
to call a psychiatrist to testify about Brown’s mental disorder
and his need for lithium, the failure to call Schick to testify
about her observations while treating Brown over a period of
time, including her observations about Brown’s responsive-
ness to lithium, and the failure to cross-examine Dr. Brinkley
after his devastating testimony that Brown did not have a dis-
order for which lithium treatment was appropriate, likely led
the jury to believe that Brown’s mental disorder was not seri-
ous and, consequently, did not constitute a mitigating factor
that warranted a life sentence. Had counsel for the defense
performed competently, they could have presented a far
stronger affirmative case for the existence of Brown’s mental
disorder and the effectiveness of lithium treatment, as well as
undermined the State’s expert witness’s contrary opinions.
Properly presented, evidence that Brown suffered from a
mental disorder that contributed to the murder but that could
have been treated with lithium, could have tended to establish
a powerful mitigating factor. Instead, defense counsel failed
to present an adequate case and counsel left themselves vul-
                       BROWN v. UTTECHT                         7637
nerable to the damaging cross-examination of Dr. Maiuro, tes-
timony of Dr. Brinkley, and closing argument by the State.

   These are not errors that “had an isolated, trivial effect.”
Strickland, 466 U.S. at 695-96. Had the jury been able to
place Brown’s mental illness on the mitigating side of the
scale, there is a “reasonable probability” that, at least one
juror would have concluded that “the balance of aggravating
and mitigating circumstances did not warrant death.” Id. at
695. As the Supreme Court has held:

     [A]lthough we suppose it is possible that a jury
     could have heard [ ] all [the mitigation evidence] and
     still have decided on the death penalty, that is not the
     test. It goes without saying that the undiscovered
     mitigating evidence, taken as a whole, might well
     have influenced the jury’s appraisal of [the defen-
     dant’s] culpability.

Rompilla v. Beard, 545 U.S. 374, 393 (2005) (quoting Wig-
gins, 539 U.S. at 538) (internal quotation marks omitted).

   I would hold that defense counsel’s three serious errors—
failure to hire a defense expert psychiatrist, failure to call
Schick to testify, and failure to cross-examine Dr. Brinkley—
prejudiced Brown. He received ineffective assistance of coun-
sel in violation of the Sixth Amendment and, as a result, the
writ of habeas corpus should issue.

V.   Conclusion

  I respectfully dissent. I would grant the writ of habeas cor-
pus and vacate Brown’s death sentence.
