dissenting:

I dissent because I am convinced that the failure of Campbell’s counsel to present evidence of mitigating circumstances during the sentencing proceedings deprived Campbell of his right to effective assistance of counsel.

I do not quarrel with the majority’s statement of the burden that Campbell must sustain under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to prevail on a claim of ineffective assistance. See ante at 1464. Nor do I deny that in some cases failure to present mitigating evidence at sentencing can be a legitimate tactical decision rather than ineffective representation. See Burger v. Kemp, — U.S.-, 107 S.Ct. 3114, 3122-26 , 97 L.Ed.2d 638 (1987). The majority, however, overlooks unique aspects of Washington law that made counsels’ omission in this case a fatal one. Counsel, in effect, signed Campbell’s death warrant.

BACKGROUND

Washington’s capital punishment statute requires a bifurcated proceeding when the death penally is sought. Wash.Rev.Code §§ 10.95.050(1). In the guilt phase, the defendant must be convicted of “aggravated first degree murder,” which is the commission of first degree murder, id. § 2.04.190, accompanied by one or more of ten specified aggravating circumstances. Id. § 10.-95.020. The Washington statute differs from the statutes of most other states in that aggravating circumstances must be proved at the guilt phase rather than at the sentencing phase of the proceedings. See State v. Bartholomew, 98 Wash.2d 173, 189 , 654 P.2d 1170 (1982), vacated and remanded, 463 U.S. 1203 , 103 S.Ct. 3530 , 77 L.Ed.2d 1383 (1983), on remand, 101 Wash.2d 631 , 683 P.2d 1079 (1984) (affirming 98 Wash.2d 173 , 654 P.2d 1170 ).

In the sentencing phase, the jury is charged with answering a single convoluted question, to wit:

Wash.Rev.Code § 10.95.060(4). If the jury returns an affirmative answer to this question, the defendant must be sentenced to death; if not, the sentence must be life imprisonment. Id. § 10.95.080. If the jury is not unanimous in finding insufficient mitigating circumstances to warrant leniency, an affirmative answer may not be returned. Id. § 10.95.060(4).

Under Washington law, the admissible evidence at the sentencing phase is limited to (1) whatever evidence in mitigation the defense chooses to offer; (2) the defendant’s criminal record; (3) evidence relevant to rebut the defendant’s evidence in mitigation. The statute provides that “[i]n deciding [whether leniency is merited] ... the jury ... may consider any relevant factors including but not limited to” eight listed factors, which include, for example, the defendant’s prior criminal activities and whether the defendant acted under the effect of an extreme mental disturbance. Id. § 10.95.070. However, just days before Campbell’s sentencing hearing, the Washington Supreme Court substantially restricted the “relevant factors” that can be considered by Washington juries. Bartho *1468 lomew, 98 Wash.2d at 196-99 , 654 P.2d 1170 . The court held that “the jury’s liberal mandate under RCW 10.95.070 to consider ‘any relevant factors’ shall be limited to mitigating factors only,” and restricted aggravating evidence to defendant’s criminal record and those factors relevant to rebut the defendant’s mitigation evidence. Id. Bartholomew also imposes a balancing test before rebuttal evidence may be admitted:

Id. at 198 , 654 P.2d 1170 .

In sum, Washington law places both a significant burden of proof and significant restraints on the prosecutor. In order to obtain the death penalty against Campbell, the prosecutor had to convince each juror beyond a reasonable doubt that there were not sufficient mitigating circumstances to warrant leniency. In doing so he was permitted to introduce only that aggravating evidence which related to Campbell’s prior criminal record or which was both relevant as rebuttal to mitigation evidence and not unduly prejudicial.

The magistrate’s report on Campbell’s habeas petition describes what happened at Campbell’s sentencing proceeding:

Although the jury had been instructed to ignore argument unsupported by law or evidence, Campbell’s counsels’ only argument was an emotional appeal for mercy. The prosecution correctly pointed out that “absolutely no mitigating circumstance” had been shown.

Of course, if no mitigating circumstances capable of convincing a juror that Campbell merited leniency existed, his counsel’s performance would have been unassailable. In fact, however, several circumstances traditionally deemed mitigating in this context did exist. 1 In the district court hearing on Campbell’s habeas petition, one of his trial lawyers testified that he knew the following about Campbell: (1) his father was an alcoholic with a violent temper who had abandoned his family; (2) his mother had kicked him out of the house and had tried to have him committed; (3) he had been the victim of child abuse; (4) he had started using drugs intravenously at age 12 and had severe problems with both drugs and alcohol; (5) he had been diagnosed as, among other things, paranoid and *1469 manic depressive; and (6) he had asked, to no avail, not to placed in the Everett Work Release facility because it was near the home of Renae Wicklund and he feared that he might loose control and harm her. For the same reason, he requested a transfer after he was placed there.

DISCUSSION

1. Competency

The district court held that counsels’ decision not to present mitigating evidence was a strategic choice within the range of professionally competent assistance under Strickland . The court noted that under Bartholomew , if Campbell’s counsel did not put on any mitigating evidence, the prosecution would be limited to introducing evidence of Campbell’s criminal record. The court accepted counsels’ conclusion “that they stood a much greater chance of persuading the jury to return a ‘life’ verdict if they could so limit the record, and avoid potentially devastating rebuttal testimony of Campbell’s sordid record of violence.” “This strategy,” the district court concluded, “even under the scrutiny of hindsight, still seems eminently reasonable.” With this I disagree. 2

Defense counsels’ strategy might have made sense if, in fact, Campbell’s mitigating evidence would have allowed the state to introduce his sordid record. But defense counsel and the district court did not take account of Bartholomew’s requirement that rebuttal evidence be more than just slightly relevant and that the court balance its probativeness against its prejudicial impact.! See 98 Wash.2d at 198 , 654 P.2d 1170 . Several mitigating circumstances— in particular those relating to Campbell’s formative years and his plea not to be placed in the vicinity of his eventual victims — would not have provided a basis for harmful rebuttal. 3 I find it incomprehensible that defense counsel made no motions in limine to test what rebuttal evidence the trial court would allow under Bartholomew’s restrictions. This approach would have been risk-free.

To understand why it was crucial to put forth evidence in mitigation, one only need read the question put to Campbell’s jury. The members of the jury, who had been presented with no evidence of mitigating circumstances were asked, if they were “convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency.” In the total absence of mitigating evidence, there is only one answer to this question. Because the question focuses solely on the existence of mitigating circumstances, counsels’ failure to offer anything upon which any juror could base a negative conclusion left the members of the jury — who we must presume acted in accordance with the law — with no options. Under the most indulgent standard, I find defense counsels’ decision to forgo presenting evidence to the jury grossly unreasonable and constitution *1470 ally ineffective. Counsel had not made a thorough investigation of the law. Strickland, 466 U.S. at 689-91 , 104 S.Ct. at 2065-66 . 4

2. Prejudice

I recognize that it is not enough that Campbell’s counsel acted unreasonably. Counsels’ omission must have been prejudicial to Campbell’s defense. Strickland, 466 U.S. at 692 , 104 S.Ct. at 2067 . Campbell “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694 , 104 S.Ct. at 2068 . Strickland defines a reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Id. Here, Campbell must demonstrate that counsel’s failure to offer any mitigating evidence undermines confidence in the outcome — imposition of the death penalty. He must show that there is a sufficient probability that at least one juror would have found the mitigating evidence sufficient to answer “no” to the question whether beyond a reasonable doubt there were insufficient mitigating circumstances to merit leniency.

No one can be sure of the outcome had the jury heard the evidence. “[T]he ultimate effect [of failure to present reasonably available mitigating evidence] on the sentencer’s final decision is absolutely indeterminate and indeterminable.” Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 351 (1983). Strickland nevertheless requires that we determine the probable effect of advocacy that never took place on each of twelve anonymous jurors. What we see in this case is the total breakdown of the adversarial process. The juror or jurors who might have believed that mercy is appropriate for those, such as Campbell, who enter this world with the cards stacked against them never knew the hand that Campbell had been dealt and with which he played out his life. 5 No juror ever knew about Campbell’s childhood, his emotional instability, his substance abuse, or his plea not to be placed near Renae Wicklund. Juror or jurors inclined to be sympathetic toward those who cannot fully control their own actions had no chance to evaluate this evidence. We do not require certainty; a reasonable probability that one juror would have voted differently if presented with the facts in mitigation is sufficient to undermine confidence in the jury’s verdict. I believe that there is a “reasonable probability” that at least one such person was on Campbell’s jury. Accordingly, I would find that Campbell has shown prejudice.

CONCLUSION

Campbell had a constitutional right to effective advocacy at his sentencing hearing. What he received was no advocacy at all. In some instances, no advocacy may be deemed effective, see Burger, 107 S.Ct. at 3126 , but this is not such a case. Rele *1471 vant mitigating evidence was known to counsel. In my view, it would not have opened the door to more damaging rebuttal evidence. See Bartholomew, 98 Wash.2d at 198 , 654 P.2d 1170 . Although the burden of showing the absence of sufficient mitigating circumstances was on the prosecution, it was counsels’ duty to show that mitigating circumstances did indeed exist. Counsels’ failure to present a case on their client’s behalf was incompetent. Campbell lost his only chance for leniency, for a life sentence rather than death. Campbell has been prejudiced because “[t]he justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance.” Strickland, 466 U.S. at 700 , 104 S.Ct. at 2071 , quoted in Burger, 107 S.Ct. at 3126 . I would grant the petition for habeas corpus and require remand to the state court for a new sentencing hearing.

. See generally Goodpastar, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 300-303 (comparing effective and ineffective assistance in specific death penalty proceedings); id. at 336 ("Counsel’s demonstration that upbringing and other formative influences may have distorted the defendant’s personality or led to his criminal behavior may spark in the sentencer the perspective or compassion conducive to mercy. Thus, effective assistance of counsel ... entails at a minimum the attempt to gather and present at least some evidence of the defendant’s background which might serve to explain the defendant’s crimes and elicit a compassionate response____”).

. The district court also found that "the decision made by petitioner’s trial counsel was a strategic one to preserve the argument, based in a good faith belief held by counsel, that the State had failed at that stage to present a prima facie case." While I do not doubt that defense counsels' belief was a good faith one, I do believe that it was legally unreasonable. The trial court held that all the evidence from the guilt phase was before the jury. This holding was clearly correct. The question put to the jury begins: “Having in mind the crime of which the defendant has been found guilty," Wash.Rev.Code § 10.95.060(4), and, under Bartholomew , "if the defendant produces no mitigating evidence, the prosecution should be limited to the factors proved at the guilt phase together with the defendant's criminal record." 98 Wash.2d at 197 , 654 P.2d 1170 (emphasis added). The fact that trial counsel never subsequently challenged imposition of the death penalty based on the state’s failure to establish a prima facie case would be incomprehensible if the argument were a legally reasonable one. Thus, to the extent that counsels’ failure to put on a case was premised on the theory that the prosecution had failed to establish its case, I would find the strategy unreasonable and representation based on it incompetent.

. The majority notes that Campbell’s lead counsel testified that, “based on his education and experience he had a splendid idea of what was going to be allowed’” in as rebuttal evidence. Ante at 1463. Campbell’s sentencing proceeding was, however, the first to be conducted under the new strictures imposed by Bartholomew . I suggest counsel relied too much on past education and experience and too little on recent decisional law.

. Campbell also contends that defense counsels’ investigation of mitigation evidence was constitutionally inadequate. While this may be true, I am satisfied that counsels’ failure to put on the evidence of which they were aware deprived Campbell of his Sixth Amendment right to counsel.

. Where the State rather than the defendant's counsel prevents the presentation of mitigating evidence, the result is clear:

The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases....

... [A] statute that prevents the sentence in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.

Lockett v. Ohio, 438 U.S. 586, 605 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973 (1978) (plurality opinion of Burger, C.J.); see Eddings v. Oklahoma, 455 U.S. 104, 112 , 102 S.Ct. 869, 875 , 71 L.Ed.2d 1 (1982) (majority of Court adopting Lockett). Sixth Amendment and Eighth Amendment challenges obviously are not analyzed under the same standards. However, whether the jury is deprived of relevant mitigating evidence by act of law or because of counsel's error, the effect on its decisionmaking process is the same.