Mark Rogers v. James Dzurenda

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ROGERS, No. 19-17158

Petitioner-Appellee,

D.C. No.

v. 3:02-cv-00342-

GMN-WGC

JAMES DZURENDA; ADAM PAUL

LAXALT; WILLIAM GITTERE,

Warden, OPINION

Respondents-Appellants.

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Argued and Submitted April 19, 2021

Seattle, Washington

Filed February 14, 2022

Before: Ronald M. Gould, Andrew D. Hurwitz, and

Mark J. Bennett, Circuit Judges.

Opinion by Judge Gould;

Concurrence by Judge Hurwitz;

Separate Statement by Judge Hurwitz;

Dissent by Judge Bennett

2 ROGERS V. DZURENDA

SUMMARY *

Habeas Corpus

Affirming the district court’s judgment granting Mark

Rogers’s 28 U.S.C. § 2254 habeas corpus petition

challenging his murder convictions, the panel held that:

(1) Rogers satisfied the Strickland v. Washington two-prong

test for ineffective assistance of counsel; and (2) the district

court did not abuse its discretion in conditionally granting

Rogers’s habeas petition and giving the State of Nevada the

option to adjudicate Rogers not guilty by reason of insanity

(“NGRI”) or to retry him.

Because the ineffective assistance claim before the

district court was never adjudicated on the merits by the

Supreme Court of Nevada, the panel reviewed the claim de

novo.

On Strickland’s deficient performance prong, the panel

held that, even applying the presumption of reasonableness,

trial counsel’s investigation, preparation, and execution of

their chosen insanity defense fell below an objective

standard of reasonableness. The panel wrote that (1) trial

counsel’s most significant error was failing to call as a

witness—or consult at all—the expert the trial court had

appointed to assess Rogers’s competency for trial and sanity

at the time of the offenses; (2) this error was compounded by

the inadequate preparation of counsel’s chosen mental health

experts; (3) trial counsel performed deficiently by not

preparing to rebut the State’s mental health expert; and

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ROGERS V. DZURENDA 3

(4) trial counsel’s failure to explain the elements of the

NGRI defense to the jury in their opening statement fell

below an objective standard of reasonableness.

On Strickland’s prejudice prong, and focusing on what a

reasonable, impartial juror would find compelling, the panel

concluded there was a reasonable likelihood that Rogers’s

NGRI defense would have succeeded if trial counsel had

performed effectively.

Although trial counsel’s performance was replete with

errors, the panel emphasized that the State’s staffing and

funding of Rogers’s case contributed to those errors.

The panel concluded that the district court—which

conditionally granted the writ with instructions for the State

to either adjudicate Rogers NGRI or retry him—did not

abuse its discretion in fashioning relief, which is narrowly

tailored to address the ineffective assistance of counsel

without awarding Rogers an unwarranted windfall.

Judge Hurwitz concurred in full. He also filed a separate

statement, joined by Judges Gould and Bennett, in which he

emphasized that the difficult issues confronted in this case

might have been avoided had Nevada paid sufficient

attention to the appointment of qualified capital counsel.

Judge Bennett dissented. He wrote that the majority’s

characterization of the trial as a battle of experts obscures

reality. He agreed that Nevada failed Rogers in allowing

such inexperienced counsel to defend him in a capital case,

but wrote that the facts left little room for masterful counsel,

much less merely adequate counsel, to have proven that

Rogers was legally insane when he committed the killings;

4 ROGERS V. DZURENDA

and that even considered together, the alleged errors

identified by the majority did not prejudice the defense.

COUNSEL

Jessica E. Perlick (argued), Deputy Attorney General; Aaron

D. Ford, Attorney General; Office of the Attorney General,

Las Vegas, Nevada; for Respondents-Appellants.

Heather Fraley (argued) and Randolph M. Fiedler, Assistant

Federal Public Defenders; Rene L. Valladares, Federal

Public Defender; Office of the Federal Public Defender, Las

Vegas, Nevada; for Petitioner-Appellee.

ROGERS V. DZURENDA 5

OPINION

GOULD, Circuit Judge:

When newly minted attorney Virginia Shane was

appointed as lead counsel in a capital case involving a triple

murder, she was not set up for success. Indeed, the deck was

stacked against her. Shane’s client, Mark Rogers, stood

accused of murdering three members of the Strode family.

Shane was appointed as Rogers’s attorney a mere four

months after passing the Nevada bar exam. At that time, she

was the only attorney in a satellite office of the Nevada State

Public Defender (“NSPD”). Shane recognized immediately

after her appointment that a “not guilty by reason of

insanity” (“NGRI”) argument was her client’s strongest—

and his only meaningfully supported—defense. Despite

these circumstances, Shane received little or no help

preparing Rogers’s insanity defense until another public

defender—equally inexperienced in presenting an insanity

defense—became co-counsel shortly before trial.

Trial counsel’s representation of Rogers reflected their

lack of experience. Their performance was characterized by

the failure to take basic steps to prepare their chosen mental

health experts for trial and to rebut the State of Nevada’s

foreseeable evidence. They did not call or even consult the

one expert, Dr. Donald Molde, appointed by the court to

address Rogers’s legal sanity at the time of the offense.

These deficiencies made the defense’s insanity case less

supported, less persuasive, and more vulnerable to

predictable and preventable attacks by the prosecution.

The State appeals the district court’s judgment granting

Rogers’s 28 U.S.C. § 2254 habeas corpus petition, which

challenged his murder convictions. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253. Reviewing Rogers’s

6 ROGERS V. DZURENDA

ineffective assistance of counsel claim de novo, see infra

Section II.A, we affirm. We hold that: (1) Rogers has

satisfied the Strickland v. Washington two-prong test, having

demonstrated both that (a) trial counsel exhibited deficient

performance and (b) that performance prejudiced Rogers;

and (2) the district court did not abuse its discretion in

conditionally granting Rogers’s habeas petition and giving

the State the option to adjudicate Rogers NGRI or to retry

him.

I

A

On December 1, 1980, while hitchhiking near

Winnemucca, Nevada, Rogers was picked up by Robert

Schott. Schott described Rogers as nervous and speaking

erratically. Rogers blurted out statements like, “You may

not believe it[,] but I’m a good American,” and “You may

not believe it[,] but I’m on your side.” After driving roughly

thirty minutes, and while Schott was “on the top of a bridge,”

Rogers bluntly said, “Let me out, now.” Schott let him out.

Around 12:30 p.m. the next day, David Hartshorn picked

up Rogers, who was then hitchhiking about twenty miles

from Imlay, Nevada. Hartshorn also had a strange

conversation with Rogers. Rogers introduced himself as

“Teepee,” and when Hartshorn asked Rogers where he was

going, he said, “Nowhere.” Among other things, Rogers told

Hartshorn that he lived in a pyramid and that “Somebody is

shooting rockets off of Mount Olympus and one of these

days it will hit my pyramid and blow me up.” Rogers also

told Hartshorn, “This is my land. I own it all.” Hartshorn

gave Rogers a can of soda, which was later found at the

crime scene. Rogers also explained that he had slept “[r]ight

here,” referring to a stretch of highway.

ROGERS V. DZURENDA 7

Around 3:30 p.m. that same afternoon, highway

maintenance foreman Earl Smith saw Rogers walking

roughly seventeen miles south of Denio, Nevada, about

130 miles north of Imlay. Smith and then some of his

workers separately gave Rogers a ride. After their

interactions with Rogers, Smith and another highway

maintenance worker described him as nervous, giving odd

answers to questions, and wearing jeans with drawings on

them. Some time that day, December 2, 1980, three

members of the Strode family were murdered. Rogers v.

State, 101 Nev. 457, 461 (1985).

Rogers was next seen three days later. He tried to enter

Canada through the Washington border, wearing a parka-

like coat with what appeared to be a towel wrapped around

his head or neck. Rogers had gotten into an accident in the

Strodes’ truck and abandoned it about ten miles south of the

Canadian border. When questioned by Canadian

immigration authorities, he claimed alternatively that he was

a United States citizen and a Canadian citizen.

While interacting with Canadian authorities, Rogers’s

behavior quickly became angry and erratic. Among other

things, he stated that: (1) he wanted political asylum in

Canada because he was being persecuted by numerous

organizations, including the CIA, motorcycle gangs, the

FBI, and the Mafia; (2) he was the “King of North America”;

and (3) he was the “Emperor of North America.” Rogers

was denied entry to Canada.

After vanishing for a period, Rogers reemerged in

January 1981. He was arrested in Florida for the Strode

murders while standing on the bumper and hanging on to the

luggage rack of a station wagon driving down the highway.

Rogers told an officer he was standing on the bumper

because two men were pursuing him. Rogers then told the

8 ROGERS V. DZURENDA

officer, “God knew me and that we are all a part of mother

nature.” In his pocket was a small pad which contained no

writing but included drawings of pyramids, figure eights,

and other symbols. During questioning, Rogers wrote “I

belong to the government” on a paper. Later, at the jail,

Rogers claimed that he killed the Strode family in self-

defense. Rogers, 101 Nev. at 462.

B

Rogers was charged in Nevada with capital murder.

Shortly after his arrest, and still in January 1981, Virginia

Shane was appointed as his lead counsel. Shane worked for

the NSPD in its Winnemucca office, where for most of the

time she was the only public defender on site. The

Winnemucca office was three hours from the main office in

Carson City. Shane—who had passed the bar just four

months before her appointment—had little legal experience

and had never handled a capital case. She also had a

workload of over eighty cases, including another capital case

and a first-degree murder case. Approximately three months

before trial, and several months after Shane was appointed,

Robert Bork was added to the defense team. Bork had been

a lawyer for only four years at the time of Rogers’s trial.

Like Shane, Bork had no experience presenting an insanity

defense or handling a capital case.

Shortly after her appointment, Shane decided to pursue

an NGRI defense. Shane and the prosecutor requested a

mental health evaluation for Rogers, to be conducted at the

Lake’s Crossing Center for Mentally Disordered Offenders

(“Lake’s Crossing”).

The trial court appointed three psychiatrists to assess

Rogers. The court directed Dr. Donald Molde to evaluate

Rogers to determine whether he was competent to stand trial

ROGERS V. DZURENDA 9

and assist in his defense, and whether he was sane at the time

of the offense. The court appointed two other psychiatrists

solely to address Rogers’s competency to stand trial:

Dr. Louis Richnak, the Lake’s Crossing medical director,

and Dr. Phillip Rich, who also did evaluations at Lake’s

Crossing and taught at the University of Nevada’s medical

school.

At Rogers’s competency hearing, Dr. Richnak testified

that Rogers was schizophrenic and not competent to consult

with his attorneys. Dr. Molde testified that Rogers “had

signs and symptoms of paranoid schizophrenia,” but he

nevertheless thought Rogers was competent to stand trial.

Significantly, however, Dr. Molde opined that Rogers was

likely not competent at the time of the offense or his arrest.

Lake’s Crossing psychologists Martin Gutride and Robert

Hiller both testified that Rogers was competent to stand trial.

The trial court ordered further testing and evaluation.

Several months after the competency hearing, the trial

court found Rogers competent to proceed to trial.

C

In the eight months before trial, at least ten mental health

professionals evaluated Rogers. Although Shane had

decided to present an NGRI defense immediately after her

appointment, trial counsel waited until the month before trial

to discuss the issue of insanity with any mental health

professional. 1

1

Trial counsel asked one psychiatrist, Dr. Ira Pauly, to do a mental

status examination two months before trial on the issue of competency.

But it was not until October 1981, one month before trial, that trial

10 ROGERS V. DZURENDA

Trial counsel selected three psychiatrists to support

Rogers’s insanity defense: Drs. Richnak (who had testified

at Rogers’s competency hearing), Rich, and Ira Pauly.

Although Dr. Molde had previously testified about Rogers’s

competency at the time of the offense, evaluated Rogers five

times before trial, and diagnosed Rogers with schizophrenia,

trial counsel did not consult him in preparation of Rogers’s

NGRI defense nor ask him to testify at trial.

Despite choosing Drs. Richnak and Rich to testify for

the defense, trial counsel never met with them before trial or

prepared them for their testimony by, among other things,

going through the DSM-III 2 with them or discussing the

report of the State’s expert. Trial counsel also did not give

Drs. Richnak and Rich the police reports detailing Rogers’s

extraordinary behavior before and after the offense. Further,

trial counsel did not even discuss Rogers’s mental state at

the time of the offense with the two experts before they took

the stand. The only expert with whom trial counsel

discussed the issue of insanity before trial was Dr. Pauly.

But trial counsel did not meet with Dr. Pauly in person,

discuss with him the other expert reports that contradicted

his conclusion that Rogers was schizophrenic, or give him

daily progress notes from Lake’s Crossing that detailed

Rogers’s behavior while he was being evaluated.

counsel asked Dr. Pauly to do a second evaluation, after which he

diagnosed Rogers with paranoid schizophrenia.

The DSM-III is the third edition of the Diagnostic and Statistical

2

Manual of Mental Disorders, published by the American Psychiatric

Association in 1980.

ROGERS V. DZURENDA 11

D

At Rogers’s trial, the prosecution explained the elements

that the State needed to prove for the jury to convict. Shane,

by contrast, did not explain Rogers’s NGRI defense in her

opening statement.

The defense presented three expert witnesses. Drs. Rich

and Richnak opined that Rogers was schizophrenic, but they

also maintained that it was not possible for them to

determine his mental state at the time of the offense because

of Rogers’s unwillingness or inability to discuss the crime.

Dr. Pauly testified that Rogers was insane at the time of the

offense, and that he had arrived at this conclusion based on

his brief evaluation of Rogers and, “most importantly,”

bystander reports. He also noted that Rogers had displayed

violent and antisocial behaviors in the past.

On rebuttal, the State called Lake’s Crossing

psychologist Martin Gutride. Based on his daily interactions

with Rogers and psychological testing, Dr. Gutride testified

that he had diagnosed Rogers with antisocial personality

disorder (“ASPD”).

The prosecution’s closing argument emphasized

testimony from the defense experts that Rogers was violent

and deceptive. The State argued that Rogers was a theatrical

actor whose bizarre behavior was evidence he knew he was

guilty and was trying to avoid criminal liability. The defense

split their closing argument, with Bork principally arguing

that Rogers did not commit the offense and Shane arguing

that Rogers did not know the nature or quality of his acts at

the time of the offense.

12 ROGERS V. DZURENDA

The jury rejected the NGRI defense and found Rogers

guilty of three counts of first-degree murder. Rogers was

sentenced to death.

E

Rogers’s conviction and sentence were affirmed by the

state appellate court on direct appeal. Rogers then sought

post-conviction relief in state court. Mary E. Boetsch, who

was appointed as post-conviction counsel, spent about eight

hours drafting a five-page petition containing seven claims

for relief. The petition argued that trial counsel were

ineffective “in presenting an insanity defense in that defense

counsel presented the testimony of Dr. Rich[,] who stated

that it would be difficult for him to determine the mental

status of Petitioner at the time of the offenses as he was not

present there and had no facts or history[,] just prior to the

testimony of Dr. Pauly, who testified that he could make

such a determination.” In preparing Rogers’s petition,

appointed post-conviction counsel did not (1) investigate or

meaningfully interview trial counsel; (2) consult experts

regarding Rogers’s mental state at the time of the offense;

(3) interview trial witnesses; (4) request Lake’s Crossing

records; (5) interview Rogers’s family or friends; or

(6) review the complete trial record.

After a hearing, the post-conviction state court found

Rogers competent and proceeded with a hearing on the

petition for post-conviction relief. The court then rejected

the claims for relief and concluded that “any alleged errors

of trial counsel were either trial strategy choices made by the

trial attorneys or errors which were not so serious that

counsel was not functioning as counsel guarantee[d] by the

Sixth Amendment.” The Supreme Court of Nevada affirmed

the denial of post-conviction relief.

ROGERS V. DZURENDA 13

Rogers filed his first federal habeas petition in 1987.

“Twice, his federal petitions contained both exhausted and

unexhausted claims, and twice his federal petitions were

stayed, and ultimately dismissed without prejudice so that

Rogers could return to state court, file new state petitions for

post-conviction relief, and present the unexhausted claims in

state court.” Rogers v. McDaniel, 793 F.3d 1036, 1040 (9th

Cir. 2015). Both successive state petitions were dismissed.

Id.

Rogers filed his third petition, the operative petition in

this appeal, in June 2002. Id. Claim Five contended that

trial counsel were ineffective for failing to investigate or

adequately present the chosen insanity defense. Rogers

asserted, among other things, that trial counsel did not

properly investigate his background to provide that

information to his experts, and trial counsel did not impeach

Dr. Gutride’s testimony with readily available evidence.

In 2011, the district court rejected Claim Five on the

merits. On appeal, we remanded for the district court to

reconsider Claim Five in light of Martinez v. Ryan, 566 U.S.

1 (2012), and Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014)

(en banc). See Rogers, 793 F.3d at 1045. On remand, the

district court conducted an evidentiary hearing on Claim

Five and heard testimony from both of Rogers’s trial

attorneys, defense expert Dr. Pauly, Dr. Molde, and a

Strickland expert, Martin Wiener.

At the evidentiary hearing, trial counsel testified to their

lack of experience presenting an insanity defense and the

mistakes they made in preparing their witnesses for trial.

Trial counsel admitted to not taking basic steps to prepare

their witnesses for trial and conceded that they had no

strategic justification for those omissions. While trial

counsel acknowledged that it was important to corroborate

14 ROGERS V. DZURENDA

Rogers’s mental illness in childhood, they admitted that they

did not investigate Rogers’s childhood or provide

information about his childhood to their experts. Trial

counsel testified that they did not give their experts essential

documents that trial counsel already had in their possession,

or which were readily available. Trial counsel admitted to

not preparing to cross-examine Dr. Gutride with evidence

such as Lake’s Crossing records and the DSM-III, and that

they had no strategic reason for not doing so. Finally, trial

counsel admitted to never speaking with Dr. Molde, the only

court-appointed expert to assess Rogers’s mental state at the

time of the offense, and who had stated after his examination

that he believed Rogers was insane when committing the

crime.

Drs. Pauly and Molde’s testimony confirmed trial

counsel’s account of the preparation for Rogers’s trial.

Dr. Pauly confirmed that he never met with trial counsel

face-to-face and never received certain documents.

Dr. Molde confirmed that he had never spoken with trial

counsel. Dr. Pauly explained how the Lake’s Crossing daily

progress notes, which he did not receive before trial, would

have been helpful to him. He also emphasized that evidence

of Rogers’s behavior as a child could have been explained as

prodromal symptoms of schizophrenia. Dr. Molde opined

that Dr. Pauly’s testimony at Rogers’s trial was strong, but

he also described the testimony he would have provided at

trial if he had been asked to testify, including his conclusion

that Rogers was insane at the time of the offense.

Rogers’s Strickland expert, Martin Wiener, concluded

that trial counsel’s performance in presenting Rogers’s

insanity defense “absolutely” did not satisfy the standard of

practice in Nevada in 1981. As he explained, “it was just a

series of compound mistake[s] . . . that really diminished the

ROGERS V. DZURENDA 15

strength of the insanity defense at trial.” Wiener discussed

the importance of preparing experts for their testimony by

providing them all relevant records. He then testified that

the standard of practice required counsel to prepare to rebut

the State’s experts and evidence. For each of the above,

Wiener explained how trial counsel performed deficiently by

failing to meet the prevailing standard.

The district court first found that Claim Five had been

“fundamentally altered” from the ineffective assistance of

counsel claim Rogers had raised in the state post-conviction

proceeding. As a result, Rogers’s Claim Five was

procedurally defaulted under Martinez v. Ryan. The district

court next found that Rogers overcame the procedural

default because his first state post-conviction counsel was

ineffective for failing to raise Claim Five. Accordingly, the

district court reviewed the merits of Claim Five de novo and

determined that Rogers was entitled to relief.

This timely appeal followed.

II

We first address whether Rogers’s trial counsel was

constitutionally ineffective under Strickland v. Washington,

466 U.S. 668 (1984). We conclude that trial counsel’s

execution of their chosen insanity defense fell below

objective standards of reasonableness and was therefore

deficient performance. Id. at 687. We also conclude that

trial counsel’s deficient performance prejudiced Rogers. Id.

A. Standard of Review

“We review de novo the district court’s decision to grant

or deny a petition for writ of habeas corpus.” Rhoades v.

Henry, 638 F.3d 1027, 1034 (9th Cir. 2011). We also review

16 ROGERS V. DZURENDA

ineffective assistance of counsel claims, which present

mixed questions of law and fact, de novo. Id. But we review

“[f]actual findings and credibility determinations made by

the district court in the context of granting or denying the

petition . . . for clear error.” Larsen v. Soto, 742 F.3d 1083,

1091–92 (9th Cir. 2013) (quoting Lambert v. Blodgett,

393 F.3d 943, 964 (9th Cir. 2004)).

Because Rogers filed his operative habeas petition in

2002, his appeal would ordinarily be governed by the

deferential standard of review mandated the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2244. But that standard of review only applies

“with respect to any claim that was adjudicated on the merits

in State court.” 28 U.S.C. § 2254(d). Here, the district court

determined that Claim Five, as alleged in the operative

petition, included new factual allegations such that the claim

previously considered by the state court was “fundamentally

altered.” See Dickens, 740 F.3d at 1319. If a claim has been

fundamentally altered, it was not adjudicated on the merits

in state court and is procedurally defaulted. Id. at 1318. As

a result, the district court could review Rogers’s Claim Five

only if he overcame the procedural default. The district

court then found that Rogers overcame the procedural

default because his counsel at the state collateral review

proceeding was ineffective. See Martinez, 566 U.S. at 14.

After finding that Rogers overcame the procedural default,

the district court reviewed the merits of Rogers’s claim de

novo, “[b]ecause this claim, as now presented, was not

adjudicated on its merits in state court.”

On appeal, the State does not challenge the district

court’s decision not to apply AEDPA deference to the state

court’s adjudication of Rogers’s ineffective assistance of

ROGERS V. DZURENDA 17

counsel claim. 3 Because the ineffective assistance of

counsel claim before the district court was never adjudicated

on the merits by the Supreme Court of Nevada, we review

Rogers’s Claim Five de novo. Rodney v. Filson, 916 F.3d

1254, 1258 (9th Cir. 2019) (“[A]ny federally reviewable

claims that were not adjudicated on the merits in state court

are reviewed de novo.”).

B. Ineffective Assistance of Counsel Legal Standard

To succeed on a claim of ineffective assistance of

counsel (“IAC”) under the Sixth Amendment, a petitioner

must prove: (1) that his counsel’s performance fell below an

objective standard of reasonableness (the deficient

performance prong); and (2) that there is a reasonable

probability of a more favorable outcome if counsel

performed effectively (the prejudice prong). Strickland,

466 U.S. at 687–88, 694.

On the deficient performance prong, the petitioner must

show that “counsel made errors so serious that [they] [were]

not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. at 687. Counsel’s errors are

assessed by referring to “prevailing professional norms.” Id.

at 688. There is no checklist of required events for

satisfactory attorney performance, and counsel is “strongly

presumed” to have performed effectively. Id. at 688, 690.

Because “[e]ven the best criminal defense attorneys would

not defend a particular client in the same way,” id. at 689,

leeway must be allowed for tactical decisions at trial. Courts

3

Although a habeas court may exercise its “discretion to raise

procedural default sua sponte if doing so furthers” the interests of

comity, federalism, and judicial efficiency, Boyd v. Thompson, 147 F.3d

1124, 1127 (9th Cir. 1998), we decline to exercise that discretion here.

18 ROGERS V. DZURENDA

must also adopt counsel’s perspective at the time of the

challenged conduct to avoid the “distorting effects of

hindsight.” Id.

Even considering the deference owed to strategic

decisions by counsel, see id., courts have held that counsel

can perform deficiently by, among other things, failing to

adequately investigate the defendant’s background, see

Williams v. Taylor, 529 U.S. 362, 390–91 (2000); to prepare

witnesses, including mental health experts, see Bean v.

Calderon, 163 F.3d 1073, 1080–81 (9th Cir. 1998); and to

prepare to rebut opposing counsel’s witnesses with known

or readily available information, see Harris v. Blodgett,

853 F. Supp. 1239, 1265–66 (W.D. Wash. 1994), aff’d sub

nom. Harris v. Wood, 64 F.3d 1432, 1436, 1438 (9th Cir.

1995).

On the prejudice prong, “[a] reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. This is not a “more

likely than not” standard, but the likelihood of a different

result must be more than “just conceivable.” Harrington v.

Richter, 562 U.S. 86, 111–12 (2011). The prejudice prong

“focuses on the question whether counsel’s deficient

performance renders the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell,

506 U.S. 364, 372 (1993). The prejudice inquiry does not

focus solely on “mere outcome determination”; attention

must also be given “to whether the result of the proceeding

was fundamentally unfair or unreliable.” Id. at 369.

C. Deficient Performance Prong

On the deficient performance prong, we hold that trial

counsel’s investigation, preparation, and execution of their

chosen insanity defense fell below an objective standard of

ROGERS V. DZURENDA 19

reasonableness. See Strickland, 466 U.S. at 687–88. Trial

counsel made several distinct errors that constitute deficient

performance in preparing and presenting the insanity

defense. We address each in turn.

1

Trial counsel’s most significant error was failing to call

as a witness—or consult at all—Dr. Molde, the expert the

trial court had appointed to assess Rogers’s competency for

trial and sanity at the time of the offenses.

Shane settled on an NGRI defense “[i]mmediately” upon

her appointment in January 1981. When Shane first visited

Rogers at the jail, she recognized his bizarre behavior as

consistent with schizophrenia. Dr. Molde was appointed to

evaluate Rogers to determine not only if he was competent

to assist in his defense, but also to determine whether, on the

date of the crime, Rogers “was in possession of mental

capacities sufficient to distinguish between right and wrong

and to comprehend the nature and quality of the acts with

which he has been charged.” At the competency hearing,

Dr. Molde testified that Rogers “had signs and symptoms of

paranoid schizophrenia,” but he believed Rogers was

competent at that time to proceed to trial. Dr. Molde also

testified, however, that Rogers was probably not competent

at the time of the offense or his arrest. Despite being aware

of Dr. Molde’s opinion on Rogers’s competence at the time

of the offense, trial counsel did not consult him in preparing

Rogers’s NGRI defense, nor did they call Dr. Molde to

testify as a trial witness. At the evidentiary hearing before

the district court, Shane testified that she did not talk to

Dr. Molde about his testimony at any time after the

competency hearing.

20 ROGERS V. DZURENDA

Trial counsel’s decision not to consult or use Dr. Molde

as a witness fell far below an objective standard of

reasonableness. See Strickland, 466 U.S. at 687–88. The

NGRI defense required the jury to apply the M’Naghten rule

and determine whether Rogers “knew the nature and quality

of [his] acts, had the capacity to determine right from wrong

or knew whether [he] was doing wrong when [he] committed

the crime.” Clark v. State, 588 P.2d 1027, 1029 (Nev. 1979).

Under the M’Naghten rule, the “ultimate issue” was not

whether Rogers was schizophrenic, but whether that

schizophrenia rendered him incapable of determining right

from wrong at the time of the offense.

Because the jury had to determine legal sanity, trial

counsel had no tactical reason not to ascertain Dr. Molde’s

opinion to see if it was consistent with his prior opinion that

Rogers was not competent at the time of the offense. The

State contends, on the other hand, that it was reasonable for

trial counsel not to call Dr. Molde as a witness because trial

counsel called Dr. Pauly, who opined that Rogers was

legally insane at the time of the crime. Even if Dr. Molde

would have been a better expert to select than Dr. Pauly, the

State contends, “counsel[’s] decisions regarding which

witnesses to present is a strategic decision entitled to almost

absolute deference.” But deference is afforded only for

“strategic choices made after thorough investigation of law

and facts relevant to plausible options.” Hernandez v.

Chappell, 923 F.3d 544, 550 (9th Cir. 2019) (quoting

Strickland, 466 U.S. at 690); see also Lambright v. Schriro,

490 F.3d 1103, 1120 (9th Cir. 2007) (per curiam) (“Only

after a thorough investigation can a less than complete

presentation of . . . evidence ever be deemed reasonable, and

only to the extent that a reasonable strategy supports such a

presentation.”). Here, trial counsel made no strategic choice.

Shane never spoke to Dr. Molde and admitted that she

ROGERS V. DZURENDA 21

simply “dropped the ball. I mean, he was there. He was

already paid by the court. I should have brought him in

because his opinion was consistent.”

If counsel had consulted with Dr. Molde and then

decided to present only Dr. Pauly on the insanity issue, such

a decision might warrant traditional deference. But we do

not give deference to counsel’s choice of one expert over

another when they did not investigate the choice and had no

informed view on whether the testifying witness would be

stronger than the non-testifying witness. See Correll v.

Ryan, 539 F.3d 938, 949 (9th Cir. 2008) (“An uninformed

strategy is not a reasoned strategy. It is, in fact, no strategy

at all.”); see also Porter v. McCollum, 558 U.S. 30, 39–40

(2009) (per curiam) (counsel ineffective for failing to “take

the first step of interviewing witnesses” and “ignor[ing]

pertinent avenues for investigation of which he should have

been aware”).

Furthermore, the failure to call Dr. Molde as a witness

was deficient performance because Dr. Molde’s testimony

would have lacked deficiencies that existed with regard to

other expert witnesses that trial counsel did decide to call. 4

First, Dr. Molde was a neutral, court-appointed expert,

4

The State contends that it was reasonable for trial counsel not to

call Dr. Molde because his testimony would have been “cumulative” to

Dr. Pauly’s. This argument conflates the Strickland deficient

performance prong with the prejudice prong. We view counsel’s

performance at the time of counsel’s conduct, and at the time counsel

failed to consult Dr. Molde, they could not have known whether

Dr. Molde’s testimony would be cumulative and therefore could not

have made a strategic choice not to call him for that reason. Whether

Dr. Molde’s testimony would have created “a reasonable probability” of

different result at trial, on the other hand, is a question about Strickland

prejudice. We address the prejudice prong in Section II.D.

22 ROGERS V. DZURENDA

whereas Dr. Pauly was hired by defense counsel. Second,

the testimony Dr. Molde would have given at trial was

consistent with his earlier testimony that Rogers was not

competent at the time of the offense. Third, unlike

Dr. Pauly, Dr. Molde had reviewed all the relevant records

and had seen Rogers on more occasions than any of the

mental health professionals to testify other than Dr. Gutride.

Indeed—and in a very negative contrast—at trial, Dr. Pauly

admitted that he came to his conclusion on insanity after

spending only three-and-a-half hours with Rogers and

without reviewing the Lake’s Crossing daily progress notes.

During closing arguments, the prosecutor emphasized

Dr. Pauly’s shortcomings as a witness:

Again, all I can tell you, ladies and

gentlemen, is that we had ten various

psychiatrists who indicated that they had

examined this defendant, trained psychiatric

people, over a period of eight to ten months,

appointed by the court, and we find one man

that will come into the courtroom and give an

opinion, who will give an opinion at all, with

regards to whether at that time the defendant

knew right from wrong.

Do you know why that man is here?

Well, he had an interest in being here.

He was hired especially by the defense to

come into this courtroom.

ROGERS V. DZURENDA 23

He was not court appointed as he indicated

. . . .5

Dr. Molde’s testimony, on the other hand, would not have

been vulnerable to such “hired gun” attacks, and with his

testimony to bolster Dr. Pauly’s, the prosecution could not

have faulted Rogers for presenting only one expert on the

ultimate issue. Because trial counsel’s decisions about

Dr. Molde cannot be explained as trial strategy, we hold that

trial counsel performed deficiently in failing to consult

Dr. Molde and to call him to testify.

2

Trial counsel’s error in not consulting and calling

Dr. Molde was compounded by the inadequate preparation

of their chosen mental health experts: Drs. Pauly, Richnak,

and Rich. We distinguish this error from trial counsel’s

threshold decision to use these experts to support the NGRI

defense at all. The State misconstrues one of Rogers’s

arguments, stating that “the main thrust of the [district]

court’s conclusion is based on [trial counsel’s] presentation

of Rogers’[s] insanity defense through” these three experts,

two of whom did not opine on the ultimate issue of insanity.

But even if we assume that counsel had good reasons to call

these experts and that their proposed testimony was likely to

be helpful in some ways to Rogers, it does not excuse the

lack of preparation once those experts were chosen.

5

The dissent argues “[t]hat Dr. Pauly acknowledged being hired by

defense counsel is a non-sequitur.” Dissent at 79. Clearly, however, the

prosecution believed that it was relevant that Dr. Pauly was hired by the

defense.

24 ROGERS V. DZURENDA

We conclude that trial counsel’s inadequate preparation

of their mental health experts constitutes deficient

performance. To begin, trial counsel left Dr. Pauly too little

time to prepare an opinion. Although Shane settled on the

NGRI defense immediately after her appointment, she and

Bork did not begin preparing Dr. Pauly for his testimony—

testimony on what Shane believed was Rogers’s sole

supported defense—until the month before trial. Trial

counsel has given no reason why they waited so long to

contact Dr. Pauly, who was also the only expert they

intended to ask about the ultimate issue of insanity.

Even after finally contacting Dr. Pauly, trial counsel did

not provide him with documents that were essential to his

testimony, and the documents they did provide were not

adequately discussed with him. We have repeatedly found

trial counsel ineffective for failing to adequately prepare

experts or provide them with sufficient “informational

foundations.” See, e.g., Smith v. Stewart, 189 F.3d 1004,

1012 (9th Cir. 1999) (holding that “[a] lawyer who should

have known but does not inform his expert witnesses about

essential information going to the heart of the defendant’s

case” was constitutionally ineffective).

Critically, Dr. Pauly never received the Lake’s Crossing

progress notes that detailed Rogers’s daily conduct in the

months leading up to trial, which contained “quite a bit” of

information that supported his diagnosis of schizophrenia,

even though trial counsel had access to them. See Caro v.

Calderon, 165 F.3d 1223, 1228 (9th Cir. 1999) (trial counsel

ineffective where “counsel failed to provide those who did

examine [the defendant] with the information that he had”).

Shane admitted that not providing the daily progress notes to

Dr. Pauly “was definitely a mistake.”

ROGERS V. DZURENDA 25

Furthermore, trial counsel’s failure to investigate

Rogers’s background to fully prepare their experts was

objectively unreasonable. Counsel in a capital case has an

“obligation to conduct a thorough investigation of the

defendant’s background.” Williams, 529 U.S. at 396; see

also Porter, 558 U.S. at 39 (“It is unquestioned that under

the prevailing professional norms at the time of Porter’s trial,

counsel had an ‘obligation to conduct a thorough

investigation of the defendant’s background.’” (quoting

Williams, 529 U.S. at 396)); Bean, 163 F.3d at 1080 (trial

counsel ineffective for failing to adequately investigate the

case to provide informational foundations for mental health

experts’ conclusions). This obligation is especially pertinent

in preparing mental health experts, because any gaps in the

experts’ knowledge about the defendant will severely

undercut the efficacy of the defense. See Brown v. Sternes,

304 F.3d 677, 696 (7th Cir. 2002) (“[I]t is the imprecise and

imperfect nature of the science known as psychiatry that

makes a review of the past available psychiatric records an

essential part of an evaluation of a defendant’s competency

. . . .”).

Here, trial counsel did not investigate Rogers’s

childhood before trial despite wanting to do so and knowing

such information would be important. The NSPD had an in-

house staff investigator, but trial counsel did not use him for

Rogers’s case. Instead, trial counsel used an outside

investigator who was unable to investigate Rogers’s

childhood in Ohio due to limited funding. 6 The failure to

investigate was significant because “[t]he entire theory of the

6

After exhausting their investigative funds, counsel moved for

additional funds for the penalty phase, but did not move for additional

investigative funds for the guilt phase, i.e., funds to support their NGRI

defense.

26 ROGERS V. DZURENDA

prosecution was that [Rogers] was an actor” and thus a

malingerer trying to escape criminal consequences.

Establishing a historical foundation for Rogers’s

schizophrenia diagnosis was also essential because the

State’s expert was prepared to testify that Rogers was faking

his symptoms to gain an advantage in the legal proceedings.

Trial counsel has provided no tactical reason for not

developing the proper historical foundation. Making clear

there was no supportive tactical reason, Shane

acknowledged the need to corroborate Rogers’s mental

illness in childhood, stating that she “wanted to find out what

had been going on with him at the time he was in Ohio at the

onset of his schizophrenia.” Trial counsel also knew that

“criteria from the DSM Three”—on which the mental health

experts who evaluated Rogers relied—required her “to show

certain things starting with [Rogers] at a certain age.”

For similar reasons, trial counsel performed below the

required standard of competence by not ensuring that

Drs. Rich and Richnak received and reviewed all relevant

documents. Trial counsel did not ensure that either expert

was provided the police reports detailing Rogers’s bizarre

behavior, and they did not discuss with them the Lake’s

Crossing daily progress notes or Dr. Gutride’s reports.

Shane did not recall a reason for not providing the police

reports to Dr. Rich, especially because she gave them to

Dr. Pauly. In fact, trial counsel could not recall “do[ing]

anything” to prepare these experts for their testimony, and

no entries in the case activity log indicate that they did so.

Without this necessary information, Drs. Rich and Richnak

were unable to provide a full picture of Rogers’s purported

ROGERS V. DZURENDA 27

schizophrenia. 7 See Wallace v. Stewart, 184 F.3d 1112,

1118 (9th Cir. 1999) (finding counsel ineffective for not

fulfilling “duty to seek out [evidence of the defendant’s

background] and bring it to the attention of the experts”); see

also Sternes, 304 F.3d at 696–97 (“We think it is obvious

that a psychiatrist’s diagnosis, especially when dealing with

a chronic schizophrenic, must necessarily rely heavily on the

patient’s past psychiatric history, family history, criminal

activity, and medical records.” (emphasis omitted)).

Even when trial counsel provided their experts with

useful documents, they failed to adequately discuss those

documents with the experts or discuss how the expert would

respond to expected lines of inquiry on cross-examination.

For example, trial counsel provided Dr. Pauly with the

reports of other mental health professionals who had

evaluated Rogers before trial and police reports detailing

Rogers’s behavior before and after the offense, but they

never actually met with Dr. Pauly face-to-face or discussed

those records with him. Trial counsel also never discussed

with Dr. Pauly the reports from Lake’s Crossing

psychologist Martin Gutride, whose opinions contradicted

7

The district court characterized Drs. Rich and Richnak’s testimony

as “mostly pointless, and worse . . . damaging to Rogers’[s] NGRI

defense.” We need not decide whether counsel’s decision to present two

experts who did not intend to opine on sanity was deficient because it

was deficient to present them without consulting and calling Dr. Molde

and providing them necessary and available documents. We agree with

the State that a successful insanity defense requires counsel to educate

the jury on the nature of mental illness, but the fact that these two

witnesses may have helped the jury to understand why they believed

Rogers was schizophrenic does not cure counsel’s objectively

unreasonable decisions to ignore Dr. Molde and fail to provide the

requisite informational foundations for Drs. Rich and Richnak’s

testimony.

28 ROGERS V. DZURENDA

Dr. Pauly’s conclusions, even though it would be an obvious

line of expected prosecutorial attack on cross-examination.

Trial counsel also did not discuss the ultimate issue of

insanity with either Dr. Rich or Dr. Richnak because they

did not intend to ask the experts to opine on that issue. 8 Trial

counsel offers no strategic justification for failing to at least

discuss the issue with these experts before putting them on

the stand. Without a discussion, trial counsel could not have

known what the experts would say about the insanity issue

on cross-examination. See Combs v. Coyle, 205 F.3d 269,

288 (6th Cir. 2000) (finding trial counsel ineffective in

presenting an expert in support of a diminished capacity

defense but failing to ask that expert for an opinion on the

ultimate issue before trial).

As Rogers’s Strickland expert testified, the prevailing

norms at the time of Rogers’s trial required counsel to give

their competency experts “everything you possibly could”

because “you’d want them to be prepared to . . . render a

reliable opinion.” We conclude that trial counsel performed

deficiently by not adequately preparing their experts, thereby

8

The State appears to construe Rogers’s argument as contending

that Drs. Rich and Richnak were not useful witnesses because they could

not opine on the ultimate issue of insanity. We acknowledge that some

aspects of Drs. Rich and Richnak’s testimony were useful to the defense,

but emphasize that counsel performs deficiently when counsel fail to

even discuss an issue with an expert that counsel knows will be the focal

point of the cross-examination of those witnesses and the critical issue at

trial. Indeed, the trial judge interrupted Dr. Richnak’s direct examination

to ask counsel when they would be asking for his opinion on whether

Rogers was insane at the time of the offense. When informed that would

not be the case, the State then objected to Dr. Richnak’s testimony as

having no bearing on the issues at trial.

ROGERS V. DZURENDA 29

undercutting the persuasiveness of the NGRI defense as

demonstrated through expert testimony.

3

Trial counsel also performed deficiently by not preparing

to rebut the State’s mental health expert, Dr. Martin Gutride.

Dr. Gutride was a psychologist at Lake’s Crossing. At trial,

called as the prosecution’s rebuttal witness, he opined that

Rogers was not schizophrenic or otherwise severely

mentally ill; instead, Dr. Gutride diagnosed Rogers with

ASPD. Dr. Gutride also testified to his concern that Rogers

was malingering, i.e., faking symptoms of schizophrenia to

escape criminal consequences. These conclusions directly

contradicted those of Dr. Pauly, who testified that Rogers

was schizophrenic, and that his mental illness rendered him

legally insane at the time of the offense. Thus, it was

especially important for trial counsel to at least attempt to

undermine Dr. Gutride’s testimony because he examined

Rogers numerous times over several months; this longevity

is in stark contrast to the only expert the defense called to

opine on the ultimate issue, Dr. Pauly, who admitted at trial

that he only saw Rogers for a total of three-and-a-half hours.

We have held, as have our sister circuits, that trial

counsel can be ineffective for failing to challenge a

prosecution expert. See Wood, 64 F.3d at 1436, 1438

(affirming district court’s conclusion that trial counsel was

ineffective for failing to challenge qualifications and

conclusions of prosecution ballistics expert); see also Rivas

v. Fischer, 780 F.3d 529, 550 (2d Cir. 2015) (finding trial

counsel ineffective in part for failing to adequately impeach

a vulnerable State expert at guilt phase); Couch v. Booker,

632 F.3d 241, 247 (6th Cir. 2011) (finding trial counsel

ineffective in part for failing to present expert testimony

refuting the State’s theory on cause of death).

30 ROGERS V. DZURENDA

Here, as the Strickland expert and the district court

correctly pointed out, any reasonable defense attorney would

have anticipated that the State would call Dr. Gutride based

on his reports and his testimony at the competency hearing.

Trial counsel should have known that they needed to prepare

their witnesses to explain the basis for their disagreement

with Dr. Gutride because trial counsel possessed the reports

of the multiple psychiatrists who had disagreed with

Dr. Gutride’s conclusions—and his conclusions were

extremely favorable to the prosecution. Shane admitted she

knew at the time that Dr. Gutride’s report was “very bad for

our defense,” and that she knew if the prosecution had

harmful evidence, they would typically present it.

Even though rebuttal evidence was readily available,

trial counsel did not adequately prepare their experts to rebut

Dr. Gutride’s testimony. First, trial counsel did not discuss

Dr. Gutride’s reports with Dr. Pauly. With adequate

discussion, Dr. Pauly would have been better prepared to

explain the basis not only for his disagreement with

Dr. Gutride’s diagnosis, but also to explain that Dr. Gutride

did not have a sufficient basis for his conclusions.

Specifically, pursuant to the DSM-III, Dr. Gutride lacked

sufficient information to diagnose ASPD because an ASPD

diagnosis requires records from the period before age 15.

Also, it is medically insufficient to base a diagnosis of ASPD

on the patient’s self-reporting, although that is exactly what

Dr. Gutride did. Trial counsel used the DSM-III to prepare

for trial, so the information regarding an appropriate ASPD

diagnosis was available to them.

Second, trial counsel did not prepare to impeach

Dr. Gutride with the fact that it was accepted at the time of

Rogers’s trial that a diagnosis of schizophrenia preempts, or

precludes, a diagnosis of ASPD. This information was

ROGERS V. DZURENDA 31

readily available in the ASPD section of the DSM-III.

Acknowledging that she possessed this information, Shane

testified that she had no reason for failing to prepare her

experts to testify that a schizophrenia diagnosis preempts an

ASPD diagnosis. As Dr. Molde later testified at the

evidentiary hearing before the district court, ASPD by

definition requires a normal mental status examination. The

preemption line of questioning was important because

Dr. Gutride diagnosed Rogers with ASPD, but his reports

described symptoms consistent with schizophrenia, and

therefore symptoms that were inconsistent with the normal

mental status examination that ASPD requires. Similarly,

trial counsel did not effectively confront Dr. Gutride with

evidence that supported a schizophrenia diagnosis and

undermined a finding of malingering. For example,

although trial counsel asked Dr. Gutride about a report in

which he indicated Rogers’s affect was “bland,” they did not

confront Dr. Gutride with the evidence that numerous

psychiatrists found abnormalities of perception and thought,

flatness of affect, and looseness of thought—all

characteristics of an abnormal mental status examination. It

was objectively unreasonable for trial counsel to not point

out that Dr. Gutride himself observed symptoms of a mental

illness that would preempt his own diagnosis.

The State’s contention that trial counsel “preemptively

undermined the credibility and findings of Dr. Gutride” is

unpersuasive. A prepared cross-examination is one of the

most effective tools in a search for the truth. See John Henry

Wigmore, 5 Evidence in Trials at Common Law, § 1367,

at 32 (J. Chadbourn ed. 1974) (“[C]ross-examination is . . .

beyond any doubt the greatest legal engine ever invented for

the discovery of truth.”). For this reason, trial counsel

cannot discharge their duty to anticipate and rebut the State’s

expert merely by presenting their own expert with differing

32 ROGERS V. DZURENDA

views. This is especially true if the reason trial counsel was

ill-prepared to effectively cross-examine the State’s witness

is because of inadequate investigation and preparation. See

Jones v. Ryan, 1 F.4th 1179, 1192 (9th Cir. 2021) (finding

trial counsel ineffective where the error was “based not on

strategy, but on lack of preparation, which left counsel

unaware of the importance of [the] evidence”); Couch,

632 F.3d at 247 (finding trial counsel ineffective for failing

to take “simple steps” to prepare to rebut the State’s

causation evidence). Accordingly, we conclude that trial

counsel performed deficiently by failing to adequately

challenge Dr. Gutride.

4

Trial counsel’s failure to explain the elements of the

NGRI defense to the jury in their opening statement likewise

fell below an objective standard of reasonableness.

The prosecution’s opening statement informed the jury

of the elements of the crimes charged, explaining that “[a]s

you progress and we progress in this trial and as the

witnesses testify it is important that you have some

understanding as to what elements you may have to look

for.” After explaining the elements of first-degree murder,

the prosecutor told the jury that these “elements” are like a

“recipe or a chemical formula,” and at the end of the trial the

jury “can go through and check them off.” Trial counsel for

Rogers, on the other hand, did not tell the jury the elements

of their insanity defense. The prosecution informed the jury

that Rogers had entered a plea of NGRI and had the burden

of proving that defense, but Rogers’s counsel did not define

legal insanity or tell the jury what elements the defense had

the burden of proving. Thus, as Rogers points out, the jury

was given context for how the evidence that would be

presented related to the murder charge, but it was given

ROGERS V. DZURENDA 33

inadequate context for how the evidence would relate to the

insanity defense.

Opening statements are essential to contextualize the

evidence the jury will hear and to help the jury understand

each side’s theory of the case. For this reason, trial counsel

admitted that their failure to explain the insanity defense at

the outset was “a big mistake.” Rogers’s Strickland expert,

Wiener, explained at the evidentiary hearing below why this

omission was objectively unreasonable. He testified that due

to the State’s strong circumstantial evidence, “the possibility

of avoiding a guilty verdict all fell on the insanity defense.”

But because Shane never discussed the definition of insanity

that would be presented to the jury at the end of the trial, the

jury “must have wondered why are we listening to all this

stuff about is it paranoid schizophrenia or is it antisocial

behavior or did he malinger or didn’t he, did he fake, didn’t

he? Why are we listening to psychiatrists?” A reasonably

competent defense attorney would have known that omitting

the proper context to the most important question before the

jury made the NGRI defense less likely to succeed.

5

Shane, as lead counsel for Rogers, knew that an NGRI

verdict was the best, and only, defense strategy. Rogers and

the State agree on appeal that there was strong evidence

connecting Rogers to the murder scene. Given that it would

be difficult for Rogers’s defense counsel to seriously argue

that he did not commit the murders, properly preparing and

executing the NGRI defense was trial counsel’s most

important task. Trial counsel’s failure to prepare their

experts, provide them with critical documents, discuss the

insanity issue with them before putting them on the stand,

investigate Rogers’s background to provide information to

support its experts’ diagnoses, explain the elements of the

34 ROGERS V. DZURENDA

insanity defense to the jury, and use readily available

evidence to rebut the State’s expert, all prevented Rogers

from subjecting the State’s case to “reliable adversarial

testing.” Strickland, 466 U.S. at 688. Even granting

Rogers’s trial counsel the proper presumption of

reasonableness under Strickland, we hold that Rogers’s trial

counsel performed deficiently.

D. Prejudice Prong

We next hold that Rogers has shown there was a

reasonable probability that he would have received a more

favorable outcome had trial counsel performed competently.

See id. at 694.

1

The State’s primary contention on appeal is that NGRI

verdicts are “exceedingly rare” in Nevada. The State bases

its argument that there can be no prejudice around a factually

similar case in which the defendant unsuccessfully asserted

an insanity defense despite using Dr. Molde as an expert.

We decline the State’s invitation to subjectively determine

what a particular jury in rural Nevada is likely to do. Instead,

we ask whether a reasonable juror impartially applying the

totality of the evidence to the legal standards would be

reasonably likely to find those standards met. In Strickland,

the Supreme Court stated that “[t]he assessment of prejudice

should proceed on the assumption that the decisionmaker is

reasonably, conscientiously, and impartially applying the

standards that govern the decision. It should not depend on

the idiosyncra[s]ies of the particular decisionmaker, such as

unusual propensities toward harshness or leniency.” Id. at

695. “[E]vidence about, for example, a particular judge’s

sentencing practices, should not be considered in the

prejudice determination.” Id.

ROGERS V. DZURENDA 35

In effect, the State asks us to look at Nevada juries’

histories regarding a particular defense. This request is

contrary to Strickland’s guidance, and more importantly, it

ignores the fact that the evidence Rogers was insane at the

time of his crime was especially compelling, and thus could

have been more persuasive than the evidence in a

comparable case. Cf. Chappell, 923 F.3d at 554 (finding no

prejudice where counsel did not present diminished capacity

evidence because the strength of defendant’s intent

“contrast[ed] sharply with the relatively weak” evidence on

diminished capacity, which would have negated the requisite

intent). The State points to the factual similarities in the

comparator case, but the fact that the case was also a rural

triple murder and used the same expert tells us little about

the strength of the evidence that the comparator defendant

did not know right from wrong at the time of that defendant’s

offense.

2

Focusing on what a reasonable, impartial juror would

find compelling, we conclude there was a reasonable

likelihood that Rogers’s NGRI defense would have

succeeded if trial counsel performed effectively. In

analyzing Strickland prejudice, we “compare the evidence

that actually was presented to the jury with the evidence that

might have been presented had counsel acted differently.”

Id. at 551 (quoting Clark v. Arnold, 769 F.3d 711, 728 (9th

Cir. 2014)). Here, trial counsel’s deficiencies in failing to

prepare their witnesses and failing to impeach or rebut the

State’s evidence pervaded the entire trial. See Weaver v.

Massachusetts, 137 S. Ct. 1899, 1913 (2017) (suggesting

that ineffective assistance is more likely to be shown where

deficient performance “pervade[d] the whole trial”).

Rogers’s case for prejudice is bolstered by the fact that we

36 ROGERS V. DZURENDA

have identified multiple errors. “When an attorney has made

a series of errors that prevents the proper presentation of a

defense, it is appropriate to consider the cumulative impact

of the errors in assessing prejudice.” Turner v. Duncan,

158 F.3d 449, 457 (9th Cir. 1998); see also Wood, 64 F.3d

at 14s39 (“By finding cumulative prejudice, we obviate the

need to analyze the individual prejudicial effect of each

deficiency.”).

Due to trial counsel’s ineffectiveness during opening

statements, the jury was not told the legal standard for

insanity or what precisely Rogers had to prove. As a result,

the jury had little context for understanding the significance

of the State’s evidence of Rogers’s bizarre behavior before

and after the crime, or the defense evidence of mental illness.

The jury also heard from only a single defense witness,

Dr. Pauly, who was willing and able to testify to whether

Rogers was legally insane at the time of the offense. 9 The

jury heard Dr. Pauly’s opinion only after two mental health

experts testified to being unable to render an opinion, despite

being defense witnesses. 10 Exacerbating the fact that

9

The dissent argues that “[t]he key missing evidence, as opposed to

anything missing from the defense presentation, were facts from which

a jury could conclude that Rogers didn’t know that he was killing the

Strodes or that killing them was wrong.” Dissent at 95–96. This is belied

by the record. Drs. Pauly and Molde directly opined that Rogers was

insane at the time of the crime.

10

Even if it were not constitutionally deficient for trial counsel to

present two experts to opine that Rogers is schizophrenic without also

asking those experts their opinion on legal sanity, it was prejudicial to

inadequately prepare those experts. If Drs. Rich and Richnak had been

adequately prepared, they would have had the same materials as

Dr. Pauly and would have therefore had the tools to form an opinion on

the ultimate issue. As Rogers’s Strickland expert testified: “the only

ROGERS V. DZURENDA 37

Dr. Pauly was the only defense expert to testify to the

ultimate issue, his testimony was subject to attack on several

fronts. The jury heard Dr. Pauly admit that he only met with

Rogers twice (for under four hours total), he was hired by

defense counsel for his opinion, and he failed to review daily

progress notes in rendering his opinion. See Jones, 1 F.4th

at 1196–1201 (finding prejudice where trial counsel

presented a mental health expert who spent four hours with

the defendant instead of a mental health expert who spent an

estimated 130 hours working on the defense case).

Dr. Gutride’s cross-examination even highlighted the fact

that reading his reports, which summarized the daily

progress notes, would not provide the same comprehensive

information as the notes themselves.

reason [Drs. Rich and Richnak] couldn’t express an opinion [on insanity]

was [that] their only source of a possible opinion would have been from

what Mr. Rogers told them. But there was so much other material

available that didn’t require Mr. Rogers to say anything about the event.”

If the two experts had been adequately prepared and still did not have an

opinion on insanity or believed that Rogers was legally sane at the time

of the offense, trial counsel could have presented fewer or different

experts.

Alternatively, Drs. Rich and Richnak could have been prepared to

testify in a way that did not contradict Dr. Pauly’s conclusion that he had

enough information to opine on insanity. Instead, both experts were

forced to admit that they were unable to form an opinion because Rogers

refused to discuss the crime, rather than explain that they had not been

asked to draw such a conclusion. Moreover, Dr. Gutride, a state expert,

testified that he too could not opine on insanity because he only saw

Rogers the year after the crime was committed and it would have been a

“tremendous leap” for him to draw a conclusion without “enough data

available to [him] at the time of the crime.” Thus, the jury was left to

wonder why only one of the testifying mental health experts—and,

conveniently, the hired defense expert—had enough data to draw a

conclusion on Rogers’s sanity.

38 ROGERS V. DZURENDA

The jury also heard Rogers’s mother describe his violent

and impulsive behavior growing up, but because counsel did

not investigate Rogers’s childhood or prepare their experts

with that information, the defense experts were not prepared

to place those behaviors in the proper context. If trial

counsel had investigated Rogers’s background, Dr. Pauly

would have explained to the jury that Rogers’s behavior in

childhood was “quite typical of schizophrenia,” as it

represented “the prodromal stage of a disorder that evolves

later that’s called schizophrenia.” This testimony would

have bolstered Dr. Pauly’s opinion that Rogers was

schizophrenic and undermined Dr. Gutride’s testimony that

Rogers was malingering. See United States v. Laureys,

866 F.3d 432, 440 (D.C. Cir. 2017) (holding that counsel’s

failure to present expert testimony that would have

“significantly bolstered” defense theory prejudiced the

defendant).

Proper investigation also would have uncovered

evidence of Rogers’s mother drinking while pregnant and

Rogers’s childhood abuse, and Dr. Pauly would have

testified that both are contributing factors to the development

of schizophrenia. Courts have consistently held that

evidence of a defendant’s background is relevant and

impactful to the defendant’s mental state while committing

a crime. See Boyde v. California, 494 U.S. 370, 382 (1990)

(“[E]vidence about the defendant’s background and

character is relevant because of the belief, long held by this

society, that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional

and mental problems, may be less culpable than defendants

who have no such excuse.” (quoting Penry v. Lynaugh,

492 U.S. 302, 319 (1989))); Jones, 1 F.4th at 1200 (“We are

persuaded that testimony explaining Jones’s [childhood and

upbringing] would have significantly impacted the overall

ROGERS V. DZURENDA 39

presentation of Jones’s culpability with respect to his mental

state[.]”).

Instead, the jury was able to pair Rogers’s mother’s

testimony with Dr. Pauly’s testimony that Rogers exhibited

antisocial behaviors in adolescence and during the time he

lived with his ex-roommate. On direct examination, trial

counsel asked Dr. Pauly about the prosecutor’s reports that

covered Rogers’s background in Ohio without preparing him

to talk about how those reports fit into his schizophrenia

diagnosis. Based on his review of the reports, Dr. Pauly

testified that in Rogers’s adolescence, he displayed

antisocial behaviors, including incidents of theft and

stabbing, and engaged in “heavy use” of drugs. Although

trial counsel had framed the question to ask about the early

onset of Rogers’s schizophrenia, Dr. Pauly equivocally

stated, “the best I could say from [the evidence provided by

the district attorney’s reports regarding Rogers’s

adolescence] would be that his adolescence was marked by

a good deal of antisocial behavior, fighting, and . . . a good

deal of drug abuse.” Dr. Pauly then stated that he reviewed

evidence from Rogers’s ex-roommate that Rogers’s

behavior had been “erratic,” characterized by “outbursts of

anger,” and Rogers had even thrown an ashtray into a

television set. Not only did Dr. Pauly not show the

connection between the adolescent antisocial behaviors and

his schizophrenia diagnosis (the “prodromal stage”

connection), he also did not testify that his schizophrenia

diagnosis preempts an ASPD diagnosis. If Dr. Pauly had

testified that his diagnosis of schizophrenia preempted any

diagnosis of ASPD, the damage to the defense from

Dr. Pauly’s references to antisocial behavior would have

been mitigated.

40 ROGERS V. DZURENDA

Finally, the jury heard from Dr. Gutride on rebuttal that

Rogers may have been faking his psychotic symptoms and

suffered from ASPD. Because Dr. Gutride was the only

rebuttal witness, he was the last witness to testify. Due to

trial counsel’s ineffectiveness, the jury did not hear defense

counsel impeach Dr. Gutride’s conclusions or his credibility

with readily available evidence. See supra, Section II.C.3;

see also Pointer v. Texas, 380 U.S. 400, 404 (1965)

(“[P]robably no one, certainly no one experienced in the trial

of lawsuits, would deny the value of cross-examination in

exposing falsehood and bringing out the truth in the trial of

a criminal case.”). Without an effective cross-examination,

and because no expert had testified that an abnormal mental

status examination preempts ASPD, the jury was left to

choose between two seemingly plausible theories of

Rogers’s mental health.

3

On the other hand, if counsel had performed effectively,

the jury would have heard the standard for legal insanity

during opening arguments and would have been primed to

consider the testimony of the mental health experts in the

context of the defense’s NGRI theory. Perhaps most

importantly, if trial counsel had contacted Dr. Molde and

given him all the relevant documents, he would have

confirmed Dr. Pauly’s testimony that Rogers “did not know

right from wrong or know the nature and quality of his act.”

Dr. Molde would have explained how the bystanders’

descriptions of Rogers’s behavior and his numerous

examinations allowed him to reach the conclusion that

Rogers was insane at the time of the offense. He would have

testified that Rogers had a “rock-solid” case for NGRI.

Unlike Dr. Pauly, as a court-appointed expert, Dr. Molde

would have been immune from the State’s “hired gun”

ROGERS V. DZURENDA 41

attacks. He would have also been largely immune from

attacks related to the amount of time spent with Rogers

because Dr. Molde conducted more examinations of Rogers

than any other psychiatrist or psychologist except for

Dr. Gutride.

Properly prepared, Dr. Molde’s testimony would have

severely undercut the State’s witnesses. 11 He would have

testified that a diagnosis of ASPD “absolutely requires a

normal mental status examination. There cannot be any

abnormalities of perception or thought or there can’t be any

hallucinations or delusions, any flatness of affect, any

looseness of thought, any of that stuff, because antisocial

personality disorders by definition don’t have any of that.”

Dr. Molde would have testified that “the record is replete

with oddities of perception and thinking and delusional

activity that [Rogers] had.” He would have noted that

“things like loose thought associations, concrete proverb

interpretations, flat affect, a stare, suspicious behavior,

11

Again, even if it was not deficient to call Drs. Rich and Richnak

for the defense, presenting those experts instead of Dr. Molde was

deficient and prejudicial. In contrast to the testimony Dr. Molde would

have given, Drs. Rich and Richnak’s testimony did little to further the

insanity defense for two reasons. First, the opinions of these two experts

lacked credibility because trial counsel did not provide them with the

relevant historical records necessary to support their diagnosis, which the

prosecutor highlighted during cross-examination. See Sternes, 304 F.3d

at 696–97 (emphasizing that a psychiatrist’s diagnosis of chronic

schizophrenic must necessarily rely on defendant’s background and

records). Second, Drs. Rich and Richnak’s opinions that Rogers was

schizophrenic did not reach the ultimate question for the defense.

Because they were unable to testify to the ultimate issue, and said as

much on the stand, their opinions also could not prevent the prosecution

from arguing that only one out of many mental health experts who

examined Rogers were willing to say he was legally insane at the time

of the murders.

42 ROGERS V. DZURENDA

thought-blocking, the grandiosity, odd comments, poverty of

thought, posturing, doodling, food being poisoned . . . all

that stuff is highly consistent with mental illness,

schizophrenia in particular and not due to anything else.”

This testimony would have been important because

Dr. Gutride’s reports described symptoms on Dr. Molde’s

list, including flat affect and paranoid ideations. In other

words, if Dr. Molde’s testimony about preemption had been

presented and accepted, the jury would have had to believe

that the multiple psychiatrists and psychologists who

examined Rogers and found abnormalities of perception or

thought, hallucinations or delusions, flatness of affect, or

looseness of thought—including Dr. Gutride—were

incorrect for Dr. Gutride’s ASPD diagnosis to be medically

valid under the DSM-III. Instead, Dr. Gutride’s statement

that paranoid ideation is “consistent with [paranoid

schizophrenia] but also consistent with many other things”

went unchallenged.

We reject the State’s contention that Dr. Molde’s

testimony would have been merely “cumulative” to

Dr. Pauly’s testimony. Unlike Dr. Pauly, Dr. Molde would

have testified that Dr. Gutride’s ASPD diagnosis was invalid

because he lacked sufficient historical information and

observed traits of abnormal perception and thought that

would preempt an ASPD diagnosis. Dr. Molde’s proposed

testimony would have been more persuasive than

Dr. Pauly’s because Dr. Molde was a neutral court-

appointed expert who saw Rogers many more times than

Dr. Pauly. Dr. Molde’s testimony would have prevented the

State from arguing that only “one man” was willing to testify

that Rogers was insane at the time of the crime. And, in a

battle of the experts, presenting two mental health experts to

ROGERS V. DZURENDA 43

bolster the defense theory would have been more compelling

than one. See Laureys, 866 F.3d at 440. 12

If trial counsel had adequately prepared their experts,

Dr. Pauly also would have been a more effective witness.

Specifically, if trial counsel had discussed the DSM-III

definition of ASPD with Dr. Pauly, he would have agreed

with Dr. Molde that a schizophrenia diagnosis preempts an

ASPD diagnosis. If trial counsel had investigated and

prepared Dr. Pauly with Rogers’s adolescent behavior, he

would have explained that behavior as emblematic of the

prodromal stage of schizophrenia and not ASPD. He would

have stated that Rogers’s mother drinking during pregnancy

and Rogers’s childhood trauma and abuse were contributing

factors to the development of schizophrenia. See Jones,

1 F.4th at 1200–01 (holding that defendant was prejudiced

where trial counsel did not call an expert who could have

provided testimony explaining the contributing factors to the

defendant’s cognitive dysfunction, including prenatal

substance abuse). If trial counsel had provided Dr. Pauly the

12

The dissent repeatedly asserts that additional testimony by

Drs. Rich, Richnak, and Molde would have been merely cumulative,

citing United States v. Schaflander, 743 F.2d 714, 718 (9th Cir. 1984).

See Dissent at 70, 85, 86. In Schaflander, this Court held that the

testimony of twenty-eight uncalled witnesses would have been

cumulative of the fifteen defense witnesses called at trial. Id. at 718. The

facts of this case are far different. If Rogers had even one additional

medical expert testify about the central point of his defense—whether he

was insane at the time of the crime—he would have rebutted the

prosecution’s attack that the only person willing to testify that he was

insane at the time of the crime was a hired gun. Our conclusion is

strengthened by the fact that we are engaged in a de novo review. See

supra Section II.A; see also Dissent at 62 n.11 (agreeing that review of

Rogers’s IAC claim is de novo). Under de novo review, there was a

reasonable probability that additional testimony by Drs. Rich, Richnak,

and Molde would have led to a different outcome.

44 ROGERS V. DZURENDA

Lake’s Crossing daily progress notes, those notes would

have supported his schizophrenia diagnosis. For example,

the notes provided evidence that Rogers cried when he could

not get a blue “point sheet”—a document related to the

institution’s work program—instead of a pink one, and that

he refused food only to later be found looking into the

garbage. The notes also indicated that on the first day

Rogers was at Lake’s Crossing, his “movements were

mechanical and robot-like.” If Dr. Pauly had been prepared

with the progress notes, he would not have had to admit on

cross-examination that he did not review the notes, which he

conceded could have been “of some value,” and his

credibility would not have been so undermined.

Although the State insists that Dr. Pauly explained his

disagreement with Dr. Gutride, Dr. Pauly’s testimony would

have been significantly stronger with proper preparation. If

trial counsel had discussed Dr. Gutride’s reports with

Dr. Pauly, Dr. Pauly would have testified that despite

diagnosing malingering and ASPD, Dr. Gutride’s reports

actually described symptoms consistent with schizophrenia.

Dr. Pauly would have testified that the malingering

diagnosis did not follow from the symptoms described in

Dr. Gutride’s March 17 report, in which Dr. Gutride

described flat affect and paranoid ideations. He would have

testified that Dr. Gutride’s diagnosis was undermined by

other professionals’ reports about Rogers’s behavior.

Dr. Pauly would have testified that the State’s witnesses

described behavior before the offense that was consistent

with schizophrenia, such as paranoid and persecutory

delusions. And he would have explained that Rogers had no

reason to feign mental illness at the time those behaviors

were witnessed, thereby undermining Dr. Gutride’s

conclusion of malingering. Dr. Pauly would also have

explained that a proper ASPD diagnosis requires records

ROGERS V. DZURENDA 45

from the period before age 15, and that it is medically

insufficient to base a diagnosis of ASPD on the patient’s

self-reporting, as Dr. Gutride did. Dr. Pauly’s assertions

about what data is necessary to diagnose ASPD would have

been supported by the DSM-III, which Dr. Gutride admitted

to using to guide his diagnosis.

Had trial counsel adequately prepared to rebut

Dr. Gutride’s testimony, they could have impeached him

with the fact that under the DSM-III he “lacked sufficient

evidence to make th[e] diagnosis” of ASPD. Trial counsel

would also have pointed out internal inconsistencies in

Dr. Gutride’s reports, his lack of experience in diagnosing

malingering, the daily progress notes that undermined his

conclusions, and the evidence the State itself presented

regarding Rogers’s behavior before the offense that

undermined a malingering finding. Trial counsel would

have challenged Dr. Gutride’s assertion that schizophrenia

and ASPD are not necessarily inconsistent with the

information in the DSM-III about preemption.

In the end, the dissent’s prejudice analysis (conducted de

novo, with no deference to the state proceedings) rests on the

assumption that presenting the unequivocal opinion of a

state-employed psychiatrist not hired by the defense, who

examined Rogers close to the time of the events in question

and concluded that Rogers was insane, could not have led a

single reasonable juror to arrive at a different verdict, despite

the fact that the only expert evidence offered by the State on

insanity was the opinion of a state psychologist who

examined the defendant months later, and the State made

much of the fact in summation that the only defense expert

who testified was a hired gun. That analysis erroneously

conflates an individual judge’s subjective post-hoc

speculation about what verdict the jury would actually reach

46 ROGERS V. DZURENDA

with the required Strickland analysis, which requires only a

“reasonable probability” of a different result.

We reiterate that for Rogers to meet his burden on

Strickland’s prejudice prong, he need not show that absent

trial counsel’s errors the NGRI defense would have

definitely succeeded. Rather, “[a] reasonable probability is

a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. The prejudice prong

thus “focuses on the question whether counsel’s deficient

performance renders the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart, 506 U.S.

at 372. Here, in a case turning on a battle of the experts, trial

counsel’s failure to reasonably choose which experts to call,

investigate Rogers’s history, prepare their experts, and rebut

the State’s expert undermines our confidence in the outcome

of the trial. Applying de novo review, we conclude that

Rogers has shown there was a reasonable probability of a

more favorable outcome if trial counsel had performed

effectively.

E. Institutional Obstacles

Although trial counsel’s performance was replete with

errors, we emphasize that the State’s staffing and funding of

Rogers’s case contributed to those errors. Virginia Shane

became lead trial counsel for Rogers’s capital case in

January 1981, just four months after she passed the Nevada

bar exam. Shane worked at the Winnemucca office of the

NSPD, a satellite of the main NSPD office in Carson City.

There was only one other attorney in Shane’s office from

October to December 1980, before preparation began for

Rogers’s trial, and Shane had little contact with attorneys in

other NSPD offices.

ROGERS V. DZURENDA 47

Shane had been practicing for less than a year when

Rogers’s trial was held in 1981. Despite this, she received

little to no guidance in preparing for Rogers’s trial—a trial

in which he faced the death penalty. Although Robert Bork

was subsequently staffed on the case, the record shows that

Bork did not begin assisting Shane until August 1981,

shortly before trial. Shane decided on and began preparing

the NGRI defense herself despite never having presented an

NGRI defense before Rogers’s trial. She was tasked with

choosing and preparing mental health experts, but she

admitted that she did not know the difference between the

various categories of mental health experts from which to

choose.

Shane’s office—and the NSPD’s office generally—was

overburdened and understaffed. Although the American Bar

Association recommends an attorney’s caseload not exceed

35 to 50 cases, her caseload “was always upwards of 80.” 13

Shane testified that she did not use NSPD’s in-house

investigator in Rogers’s case, and that it was likely because

he was the only public defender investigator for the whole

13

One leading criminal procedure scholar has noted that “[s]tudies

repeatedly reveal that indigent defense delivery systems are woefully

underfunded and accordingly staffed by defense attorneys who often lack

adequate training or supervision and whose caseloads are impossible for

any attorney to manage effectively.” Eve Brensike Primus,

Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms

of Constitutional Ineffectiveness, 72 STAN. L. REV. 1581, 1612 (2020).

Professor Primus contends that in cases involving systemic institutional

failure, ineffectiveness may be so “structural and pervasive” as to

constructively deny a defendant their Sixth Amendment right to effective

assistance of counsel. Id. at 1594 (citing Powell v. Alabama, 287 U.S.

45, 53–56, 68–71 (1932)). The Supreme Court has similarly expressed

concern with the structural problems in state indigent defense delivery

systems. Id. at 1619 (citing Luis v. United States, 136 S. Ct. 1083, 1087,

1095 (2016) (plurality op.)).

48 ROGERS V. DZURENDA

state outside of Clark and Washoe Counties. Then, when

Shane was forced to turn to an outside investigator, the court

granted only $3,000 in funding, consistent with the limit

prescribed by state law. Shane knew that she needed further

investigation into Rogers’s background in Ohio, but the

court denied her request for additional funds for the penalty

phase.

Given these systemic obstacles, it is clear that we should

not resolve this case merely by pointing out that counsel

have fallen on their own sword in admitting inadequate

performance, but rather should note a caution to the state

government that should have adequately trained and staffed

the case. Although we rest our holding on Strickland, we are

troubled by the adequacy of the representation in Rogers’s

case due at least in part to factors outside of trial counsel’s

personal control. If, as we believe, the right-to-counsel

guarantee is meant to ensure that our adversarial system

reliably tests the prosecution’s case before subjecting a

defendant to incarceration—and here, death—states and

municipalities providing defense in serious criminal cases

should ensure that advocates have the means to do so.

III

We finally address the State’s contention that “the

district court abused its discretion in fashioning relief for

Rogers” because “the federal court has the power of release,

but it has no other power.” After finding Rogers’s trial

counsel ineffective, the district court conditionally granted

the writ with instructions for the State to either, “(1) within

90 days from the date of this order, vacate [Rogers’s]

judgment of conviction and adjudge him [NGRI], and adjust

his custody accordingly, consistent with Nevada law, or

(2) within 90 days from the date of this order, file a notice of

the State’s intent to grant [Rogers] a new trial, and, within

ROGERS V. DZURENDA 49

180 days from the date of this order, commence jury

selection in the new trial.” We conclude that the district

court did not abuse its discretion in fashioning relief for

Rogers. 14

A reviewing “court has broad discretion in conditioning

a judgment granting habeas relief.” Hilton v. Braunskill,

481 U.S. 770, 775 (1987). Indeed, “[f]ederal courts are

authorized, under 28 U.S.C. § 2243, to dispose of habeas

corpus matters ‘as law and justice require.’” Id. “Sixth

Amendment remedies should be ‘tailored to the injury

suffered from the constitutional violation and should not

unnecessarily infringe on competing interests.’” Lafler v.

Cooper, 566 U.S. 156, 170 (2012) (quoting United States v.

Morrison, 449 U.S. 361, 364 (1981)). For instance, in

Murtishaw v. Woodford, we held that an erroneous jury

instruction constituted constitutional error that could not be

deemed harmless. 255 F.3d 926, 974 (9th Cir. 2001). As for

remedy, we reversed the district court’s denial of the habeas

petition with regard to the defendant’s death sentence and

remanded “to the district court with instructions to grant the

writ to the extent that the death penalty sentence is vacated

and a sentence of life imprisonment without parole is

substituted unless the State resentences him within a

reasonable time.” Id.

Similarly, here, the district court gave the State the

option to adjudge Rogers NGRI, thereby preserving state

resources, or retry him. Thus, contrary to the State’s

contention, the district court did not “compel” the State to

14

Despite arguing that federal courts have only one power in

granting a habeas petition—release—the State does not want the option

to release Rogers. The State also does not challenge the aspect of the

district court’s conditional writ that provided an opportunity for retrial.

50 ROGERS V. DZURENDA

adjudicate Rogers NGRI—if the State does not want to

adjudicate him NGRI, it is free to retry him. The relief

ordered is narrowly tailored to address the ineffective

assistance of counsel without awarding Rogers an

unwarranted windfall. Giving due consideration to the

district court’s broad discretion in granting conditional

habeas relief, we hold that the district court did not abuse its

discretion. 15

15

The dissent in its footnote 16 unleashes a range of contentions

primarily by its own assertions. For example, the dissent says that it

doesn’t “see how defense counsel discussing legal requirements for

insanity, along with highlighting some of the evidence . . . , would have

even benefitted Rogers,” with the dissent’s theory being that discussing

legal requirements for the NGRI defense “might have been off-putting

in the opening or might have predisposed the jury against Rogers.” See

Dissent at 66 n.16. But that theory negates the value of opening

argument on any case where a defense of NGRI is permissible and the

elements of a defense should be specified to give the best chance that a

jury will understand the context for the evidence to be presented at trial.

Strangely, the dissent also contends that, because it is clear that

“Rogers brutally murdered three innocent people,” the “evidence of both

his guilt and sanity was overwhelming.” Dissent at 100. But the fact

that Rogers killed the victims, even if clearly established, does not

establish that evidence of “his sanity was overwhelming.” Wholly apart

from the expert opinions, the jury heard that Rogers told Hartshorn that

he lived in a pyramid and that “Somebody is shooting rockets off of

Mount Olympus and one of these days it will hit my pyramid and blow

me up”; told Canadian authorities that he was “Emperor of North

America”; and, when arrested in Florida, had been standing on the

bumper and hanging on to the luggage rack of a station wagon driving

down the highway. See supra pp. 6–8.

The dissent doesn’t adequately explain why it concludes that the

evidence of sanity was “overwhelming.” To be sure, Rogers killed his

victims in calculated and cold-blooded ways and persistently attempted

to avoid capture, including fleeing to the Canadian border. But these

ROGERS V. DZURENDA 51

IV

For the foregoing reasons, we affirm the district court’s

grant of Rogers’s habeas petition based on his ineffective

assistance of counsel claim. The deficiency of counsel

prejudiced Rogers because a better result was reasonably

probable had there been a competent presentation by the

defense, and the error was not harmless because there was a

substantial and injurious effect or influence of the IAC in

determining the jury verdict. See O’Neal v McAninch,

513 U.S. 432, 436 (1995).

AFFIRMED.

HURWITZ, Circuit Judge, concurring:

I join Judge Gould’s opinion in full and have also filed a

separate statement in which Judges Gould and Bennett

concur.

Separate statement of HURWITZ, Circuit Judge, joined by

GOULD and BENNETT, Circuit Judges:

I write separately to emphasize a point Judge Gould

makes in his majority opinion—that the difficult issues we

actions of Rogers are consistent with insanity. The methodical actions

of a killer in a delusional state who does not know right from wrong do

not prevent satisfying the standard M’Naghten definition of insanity.

The critical issue is whether Rogers knew the difference between right

and wrong at the time of the murders, not whether he acted in an entirely

bizarre or plainly methodical manner.

52 ROGERS V. DZURENDA

confront today might have been avoided had Nevada paid

sufficient attention to the appointment of qualified capital

counsel.

I do not doubt that appointed defense counsel tried their

best and were fully competent to try noncapital cases. But

capital defense is not simply routine criminal defense with

higher stakes. Rather, as the Supreme Court aptly put it,

“death is different.” Ford v. Wainwright, 477 U.S. 399, 411

(1986) (plurality op.). It is indisputably the “most

challenging aspect of criminal defense.” Larry Hammond &

Robin M. Maher, The ABA Guidelines: The Arizona

Experience, 47 HOFSTRA L. REV. 137, 138 (2018). The

American Bar Association long ago recognized this,

enacting detailed Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases.

And the Supreme Court, while not treating the Guidelines as

mandatory, has emphasized their usefulness in evaluating

the adequacy of capital defense counsel’s performance. See

Bobby v. Van Hook, 558 U.S. 4, 8 (2009); Wiggins v. Smith,

539 U.S. 510, 524 (2003).

Rogers nonetheless went on trial for his life defended by

two relatively inexperienced and overworked lawyers. Their

appointments would not have passed muster under the ABA

Guidelines. Neither had tried a capital case, presented an

insanity defense, or received any specialized training in

capital defense. See Am. Bar Ass’n, ABA Guidelines for the

Appointment and Performance of Defense Counsel in Death

Penalty Cases, 31 HOFSTRA L. REV. 913, 961–62, 976–77

(2003) (Guidelines 5.1, 8.1). And both retained oppressive

workloads during this assignment, with each responsible for

up to eighty other cases in the time leading up to Rogers’

trial. Id. at 965 (Guideline 6.1). Had Nevada paid sufficient

attention to counsel’s qualifications and workloads, most of

ROGERS V. DZURENDA 53

what counsel acknowledge as errors in handling this case

would have been avoided.

Since this case was tried, Nevada has taken steps to

address the adequacy of capital representation. The Nevada

Supreme Court now presumptively requires that lead

counsel in a capital case have “(1) acted as lead defense

counsel in five felony trials, including one murder trial, tried

to completion (i.e., to a verdict or a hung jury); (2) acted as

defense co-counsel in one death penalty trial tried to

completion; and (3) been licensed to practice law at least

three years.” See Nev. Sup. Ct. Rule 250(2)(b). The Nevada

Supreme Court has also adopted detailed, if non-binding,

standards for counsel in capital cases that appear to be

consistent with the ABA Guidelines. See Supreme Court of

the State of Nevada, ADKT No. 411, Order (Oct. 16, 2008).

But it remains as true today as it was at the time Rogers

was tried that if a State chooses to impose capital

punishment, it has the obligation to provide experienced

defense counsel with the ability, resources, and time to

handle life and death matters. “The process of sorting out

who is most deserving of society’s ultimate punishment does

not work when the most fundamental component of the

adversary system, competent representation by counsel, is

missing.” Stephen B. Bright, Counsel for the Poor: The

Death Sentence Not for the Worst Crime but for the Worst

Lawyer, 103 YALE L.J. 1835, 1837 (1994).

Far too often our court sees defective performance in

capital cases from trial counsel confronting the death penalty

for the first time. See, e.g., Elmore v. Sinclair, 799 F.3d 1238

(9th Cir. 2015); Hamilton v. Ayers, 583 F.3d 1100 (9th Cir.

2009). This is a highly specialized area of the law, and if a

State believes it is important to have a death penalty, it must

provide counsel competent to provide an effective defense,

54 ROGERS V. DZURENDA

both as to guilt and penalty. We are here today not only

because of counsel’s representation, but also because

Nevada failed to honor its obligation to provide competent

capital counsel. This case serves as a continuing caution of

the consequences of such a failure, both for parties and

victims of crime.

BENNETT, Circuit Judge, dissenting:

As the majority explains, our law requires a petitioner

seeking a writ of habeas corpus based on ineffective

assistance of counsel to show two things: (1) that counsel’s

representation was deficient, meaning it “fell below an

objective standard of reasonableness”; and (2) that such

deficiency was “prejudicial to the defense,” meaning it

created “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S.

668, 688, 692, 694 (1984).

The majority characterizes Mark Rogers’s 1980 Nevada

triple murder trial as a battle of the experts. In its view, the

search for “cumulative prejudice” centers on the testimony

of one expert who defense counsel failed to call as a witness

and other experts who defense counsel should have better

prepared. E.g., Harris ex rel. Ramseyer v. Wood, 64 F.3d

1432, 1439 (9th Cir. 1995). That narrative, however,

obscures reality. I agree that Nevada failed Rogers in

allowing such inexperienced counsel to defend him in a

capital case. But the facts left little room for masterful

counsel, much less merely adequate counsel, to have proven

that Rogers was legally insane when he committed the

killings. Even considered together, the alleged errors

identified by the majority did not prejudice Rogers’s

ROGERS V. DZURENDA 55

defense. I therefore respectfully dissent from the majority’s

affirmance of the district court’s issuance of the writ. 1

I. Factual Background

On December 2, 1980, Emery and Mary Strode and their

disabled daughter Meriam Strode Treadwell were murdered

in their home near Majuba Mountain, Nevada. Rogers v.

State, 705 P.2d 664, 667, 672 (Nev. 1985) (per curiam).

Emery, seventy-one, was shot three times and stabbed twice

with a knife left in his chest. Id. at 667. Mary, seventy-two,

was stabbed in the back and shot in the chest. 2 Id. Meriam,

forty-one, was shot in the back, her wrists bound with an

electric cord. 3 Id. Frank Strode, Emery and Mary’s son and

1

Although I dissent from the majority’s affirmance of the grant of

habeas relief (and would grant Rogers no relief), I agree with the

majority about the form of the relief it allows: Nevada may either adjudge

Rogers not guilty by reason of insanity or retry him. Majority Op. at 49.

I join the majority in rejecting Nevada’s argument that the district court

lacked the power to order that form of relief.

2

The prosecutor told the jury in closing, based on the forensic

evidence and testimony: “This knife was driven by the defendant to its

very hilt breaking through two ribs of Mrs. Strode with tremendous force

and at the same time that knife had to be drawn back out” with such

“great force” that her blood reached the ceiling. “But, as she was close

to death the pathologist testified she was shot approximately no more

than a foot away.”

3

The prosecutor argued: “Meriam was executed. She wasn’t merely

shot. Meriam, this feeble woman, . . . had a gun put up against her back[,]

either touching or so very close it might as well have been touching as

she was shot through the back. Simply said she was executed. There are

no other words for it.” Meriam’s sister-in-law, Linda Strode, noted

Meriam’s various ailments: She suffered from diabetes since age eight,

had only one eye with limited vision, had her pituitary removed, had

brittle bones from her use of cortisone, almost always used a cane and

also had a wheelchair and walker, and slept in a hospital bed.

56 ROGERS V. DZURENDA

Meriam’s brother, and his wife, Linda, discovered the bodies

the next day.

The evidence pointed only to Mark Rogers, who was

twenty-three, the murderer. Rogers was an aspiring actor

living in Los Angeles. A few weeks before Thanksgiving in

1980, Rogers visited friends in nearby San Bernardino.

Before Thanksgiving, while in San Bernardino, Rogers

called his roommate, Doug Morrison, to ask about a friend

of Morrison’s who lived in Denver, Colorado. Rogers

planned to pursue his performing (acting, singing, and

dancing) career there. Rogers called Morrison again at

8:00 a.m. on December 1, the day before the murders, this

time from a payphone in Wells, Nevada. Rogers said that he

wanted to return to Los Angeles and pursue his career there.

He sounded normal during the call. 4 That afternoon, Rogers

caught a ride bringing him from Winnemucca to Imlay,

Nevada, about thirty-five miles closer to the murder scene.

See id.

Rogers continued hitchhiking the next day, when the

murders occurred. That day, “between approximately 12:15

and 12:45 p.m.,” a geologist working nearby offered Rogers

a ride, gave him a can of Seven-Up to drink, and dropped

him off at the Strode residence. Id. Later, authorities lifted

Rogers’s fingerprints “from various items in the Strode

residence, including a Seven-Up can and a glass jar found in

the bedroom under the blanket with the victims’ bodies.” Id.

at 668. Among the other items with Rogers’s prints were a

plate of beans, a cup of coffee, a sugar jar, a creamer jar, and

a dirty coffee pot on the stove. The Strode property included

4

Morrison did not describe any erratic behavior by Rogers during

the time they were roommates. He only noted that Rogers had a few

angry outbursts, discussed below, which he did not view as alarming.

ROGERS V. DZURENDA 57

a sign announcing that it was protected by Winchester,

presumably referring to the rifle company. Other signs in

the home reflected the Strodes’ belief in their right to keep

and bear arms in self-defense. And there was at least one

shotgun stored inside.

The prosecution offered a theory of the murder sequence

based on various facts no longer disputed in this habeas

appeal. 5 When Rogers arrived at the Strode residence, there

was no smoke coming from the chimney of the residence,

contrary to the family’s usual practice on cold days. The

prosecution argued that this showed that the Strodes were

not home. Rogers then, according to the prosecution,

entered the Strodes’ home and fed himself, preparing a plate

of beans and coffee. The Strodes returned home while

Rogers was still there. At some point soon after, Rogers

stabbed Mary in the back before stabbing Emery in the chest.

Next, as the prosecution told it, Rogers shot Emery twice.

As Mary neared death, Rogers shot her from no more than a

foot away. Rogers then shot Emery in the back. He also

shot Meriam at point blank range through the back. Rogers

then cut the cord off an electric drill, tied it around Meriam’s

arm, dragged her body, and dumped it on top of the bodies

of her mother and father. Rogers then placed bed covers

over the bodies. The final entries in Emery and Meriam’s

daily diaries were dated the morning they were murdered,

and a pocket watch found in Emery’s shirt pocket and

5

At trial, defense counsel advanced a merits defense as well as an

insanity defense. As Rogers claimed to have no memory of the events,

defense counsel were likely unable to obtain his permission to abandon

a merits defense. The record is silent on this issue, and Rogers has never

advanced this as a habeas claim.

58 ROGERS V. DZURENDA

damaged by a bullet stopped at 1:00 p.m. Id. at 667. No

guns were found. 6

Evidence also revealed Rogers’s flight after he killed the

Strodes. The plate of beans was left partially eaten and the

cup of coffee partially drunk. “Between 12:30 and 2 p.m.

that same day,” a man driving a blue truck fired shots at a

mechanic driving on a road near the murder scene. 7 Id. That

afternoon, “between 3:30 and 4 p.m.,” a highway

maintenance worker gave Rogers a ride after seeing him on

the side of the road having run out of gasoline. Id. And

Rogers was spotted speeding in the Strodes’ blue truck after

that. 8 Id. Along with the murders, Rogers was convicted of

stealing the Strodes’ blue truck.

Rogers’s flight from the murders also included an

international border crossing. Rogers was seen next at the

Canadian border three days later. That day, about ten to

twelve miles from the border in Washington state,

authorities recovered the Strodes’ truck after it had been in

an accident during a blizzard. Rogers then tried to cross into

Canada on foot. He explained to border security that he was

headed to a nearby town and then to Quebec, where he hoped

to work as an entertainer and a singer. But he was denied

entry because he lacked the proper employment visa. At one

point, Rogers expressed a desire to seek political asylum in

6

The prosecutor argued: “If the defendant didn’t know that killing

these people was wrong, why would he take the guns?”

The prosecutor argued: “Why was he shot at? It was because the

7

defendant had just left the home of the Strodes and he was afraid

someone had discovered his crimes.”

8

The prosecutor argued: “[H]e peel[ed] out of there in a way that

indicate[d] that he was in an awful hurry to be leaving.”

ROGERS V. DZURENDA 59

Canada, though he claimed to be a Canadian citizen at

another point. He also told border security that he was the

emperor of North America and that the FBI and the mafia

were after him. Within a month, Rogers made it to Montreal.

While in Montreal, Rogers called his roommate, Morrison.

This call, as well, was normal. 9

About a month after the murders, on January 4, 1981,

Rogers was arrested in Florida for soliciting a ride on an

interstate. He had been standing on the bumper of a vehicle,

holding onto the luggage rack. He told the trooper who

arrested him that he was standing on the bumper because two

men who had shot at him were after him. At the county jail,

law enforcement recognized that Rogers was wanted in

Nevada. They told Rogers that they would not question him

about the charges but would “advise him about the warrants

lodged against him” and “talk to him about a possible waiver

of extradition.” With no question to prompt him, Rogers

then “made a statement that he had done it in self-defense.” 10

Rogers was charged with three counts of first-degree

murder, attempted murder (for shooting at the mechanic),

and grand larceny (for stealing the Strodes’ truck). Id.

at 668. He went to trial claiming not to remember the events

9

The prosecutor argued: “Isn’t it strange how he always can recall

the telephone number of Mr. Morrison and every time he talks to

Mr. Morrison everything is coherent and fine.”

10

The prosecutor argued: “He said, ‘I did it in self-defense.’ . . .

[A]fter being informed of the charges against him that he was wanted in

Nevada for the murder of three people . . . he said, ‘I did it in self

defense.’ . . . [T]his is not one person but two different people that he

told this to, one clear across the country, and he made the same statement,

‘I did it in self-defense.” . . . There is no self-defense in any of the bodies

that were found. Those bodies weren’t killed in self-defense. But . . .

the defendant recognized and knew that he had committed the acts.”

60 ROGERS V. DZURENDA

of those months. After deliberating for less than seven

hours, the jury returned guilty verdicts on all charges. After

deliberating another four-and-a-half hours, the jury found

two aggravating circumstances: First, that the murders were

committed by a person who was previously convicted of a

felony involving the use or threat of violence to the person

of another. And second, that the murders involved torture,

depravity of mind, or mutilation of the victims. The jury also

found insufficient mitigating circumstances to outweigh the

aggravating circumstances. And so it imposed a death

sentence for each of the three first-degree murders.

II. Discussion

The evidence was overwhelming that Rogers murdered

the Strodes. His counsel, an overworked public defender

who had been a lawyer for only four months and had never

handled a capital case, immediately decided to pursue a not

guilty by reason of insanity (“NGRI”) defense. Another

public defender joined the team about three months before

trial. He had never handled a capital case and had never put

on an NGRI defense.

A group of mental health professionals participated in

the case. Rogers’s defense team hired Dr. Ira Pauly, a board-

certified psychiatrist, and the chair of the Department of

Psychiatry at the University of Nevada School of Medicine,

to assist in the defense. The prosecution called Dr. Martin

Gutride, a psychologist at a State facility, Lake’s Crossing

Center for Mentally Disordered Offenders (“Lake’s

Crossing”), as its expert witness in rebutting the NGRI

affirmative defense. The trial court appointed three

psychiatrists to assess Rogers. Dr. Phillip Rich, a private

practitioner and faculty member of the University of Nevada

School of Medicine who did evaluations at Lake’s Crossing,

was appointed to assess Rogers’s competency to stand trial.

ROGERS V. DZURENDA 61

Dr. Louis Richnak, the medical director at Lake’s Crossing,

was also appointed to assess competency. And Dr. Donald

Molde, a private practitioner who had worked as a

psychiatrist for the Nevada Department of Prisons, was

appointed to assess competency and to assist in Rogers’s

defense.

The majority identifies five primary deficiencies in trial

counsel’s representation that it claims prejudiced Rogers’s

NGRI defense: (1) counsel’s failure to explain the elements

of the NGRI defense to the jury in their opening statement;

(2) counsel’s inadequate preparation of Drs. Rich and

Richnak to testify on the ultimate issue of Rogers’s sanity

when he killed the Strodes; (3) counsel’s inadequate

preparation of Dr. Pauly by failing to provide him the daily

progress notes from Lake’s Crossing or to investigate

Rogers’s background; (4) counsel’s failure to call or consult

Dr. Molde as a potential expert witness; and (5) counsel’s

failure to rebut the State’s mental health expert, Dr. Gutride.

Majority Op. at 35–46. In assessing the cumulative effect of

these alleged errors, the majority concludes that “[h]ere, in a

case turning on a battle of the experts, trial counsel’s failure

to reasonably choose which experts to call, investigate

Rogers’s history, prepare their experts, and rebut the State’s

expert undermines our confidence in the outcome of the

trial.” Id. at 46.

I disagree. Only the failure to call Dr. Molde as an expert

witness was deficient under Strickland. “Even under de

novo review, the standard for judging counsel’s

representation is a most deferential one” under which courts

ask “whether an attorney’s representation amounted to

incompetence under ‘prevailing professional norms,’ not

whether it deviated from best practices or most common

custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011)

62 ROGERS V. DZURENDA

(quoting Strickland, 466 U.S. at 690). The rest of counsel’s

alleged errors do not show such incompetence. 11

Yet even under the majority’s assessment that counsel’s

performance was more broadly deficient, the majority

materially overstates the impact on Rogers’s case. To assess

prejudice, courts ask “whether it is ‘reasonably likely’ the

result would have been different.” Id. at 111 (quoting

Strickland, 466 U.S. at 696). The question is not whether

the court is “certain counsel’s performance had no effect on

the outcome or whether it is possible a reasonable doubt

might have been established if counsel acted differently.”

Id. Instead, in all but “the rarest case,” the prejudice showing

is functionally indistinguishable from “a showing that

counsel’s actions ‘more likely than not altered the

11

I join the majority in reviewing Rogers’s ineffective assistance of

counsel claim here de novo. See Majority Op. at 15–17. The Supreme

Court of Nevada concluded in 1987 that “Rogers [had] failed to show

that his counsels’ performance was unreasonable or that it prejudiced

him.” Even so, the district court found that new factual allegations

“fundamentally altered” Rogers’s claim from the one he presented in

state court, meaning that the Supreme Court of Nevada never adjudicated

it on the merits and so it is procedurally defaulted. See Dickens v. Ryan,

740 F.3d 1302, 1319 (9th Cir. 2014) (en banc). The district court also

found that Rogers overcame that procedural default because his state

post-conviction counsel was ineffective. See Martinez v. Ryan, 566 U.S.

1, 14 (2012). It therefore reviewed the merits of the claim de novo. See

Atwood v. Ryan, 870 F.3d 1033, 1060 n.22 (9th Cir. 2017). Nevada does

not challenge the district court’s decision not to apply Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d),

deference to the state court’s adjudication of Rogers’s ineffective

assistance of counsel claim. See Oral Argument at 1:53–2:02 (“Q: I think

we all agree that because of the history of this case, our review is not

constrained by AEDPA deference. Do you agree? A: That’s correct.”).

And we have no duty to consider procedural default, and the attendant

question of AEDPA deference, sua sponte. See, e.g., Vang v. Nevada,

329 F.3d 1069, 1073 (9th Cir. 2003).

ROGERS V. DZURENDA 63

outcome.’” Id. at 111–12 (quoting Strickland, 466 U.S.

at 693, 697). As a result, “[t]he likelihood of a different

result must be substantial, not just conceivable.” Id. at 112.

In making this assessment, courts must “compare the

evidence that actually was presented to the jury with the

evidence that might have been presented had counsel acted

differently.” Hernandez v. Chappell, 923 F.3d 544, 551 (9th

Cir. 2019) (citation omitted).

Rogers was not prejudiced by counsel’s performance.

Although defense counsel could have done a better job, even

a better presentation of the NGRI defense would have been

very unlikely to succeed. “Under Nevada law, insanity is an

affirmative defense which the presumedly sane defendant

must prove by a preponderance of the evidence.” Ford v.

State, 717 P.2d 27, 33 (Nev. 1986). The inquiry looks at a

defendant’s sanity when the offense is committed. Id. As

for the content of the defense, Nevada applies the

M’Naghten rule, under which a defendant can rebut the

presumption of sanity only by showing that he did not

understand “the nature and quality of [his] acts,” had no

“capacity to determine right from wrong,” or did not know

“whether [he] was doing wrong when [he] committed the

crime.” 12 Clark v. State, 588 P.2d 1027, 1029 (Nev. 1979).

Under this test, “[l]egal insanity is not circumscribed in

meaning or purpose by medical criteria concerning human

psychosis,” and so “[t]he presumption of sanity is not

rebutted merely by a history of prior institutional

12

The jury was instructed: “[I]f you find that the defendant was not

capable of knowing or understanding the nature and quality of his act,

you will find that he was legally insane or, if you find that he was

incapable of knowing or understanding that his acts were wrong, you will

find that he was legally insane.”

64 ROGERS V. DZURENDA

commitments or diagnoses of mental deficiency or

derangement.” Ford, 717 P.2d at 33.

Even a perfectly presented insanity defense, with

additional and better prepared experts, 13 would have been

unlikely to rebut the presumption that Rogers was sane. The

sequence of Rogers’s actions preceding, during, and after the

killings confirmed that he understood he was killing the

Strodes and that he understood that killing the Strodes was

wrong. Yet in granting habeas relief, the district court hardly

engaged with the evidence the prosecution presented or the

strength of its case. 14

The jury rejected the NGRI defense and convicted

Rogers as charged: three counts of first-degree murder in

addition to attempted murder and grand larceny. In

following the court’s instructions, the jury necessarily found,

beyond a reasonable doubt, that each of the three killings

“was preceded and accompanied by a clear, deliberate intent

on the part of the defendant to kill which was the result of

At trial, defense counsel called Drs. Rich and Richnak to testify

13

that Rogers suffered from schizophrenia and Dr. Pauly to testify that

Rogers was schizophrenic and legally insane at the time of the offense.

14

The majority misunderstands the significance of the prosecution’s

evidence and the strength of its case. The State, from start to finish, has

argued both that there was no ineffective assistance, and that there was

no prejudice because of the significance of the prosecution’s evidence

and the strength of its case. And, of course, the district court must

compare “the evidence that actually was presented to the jury with the

evidence that might have been presented had counsel acted differently”

in light of the strength of the prosecution’s case. Hernandez, 923 F.3d

at 551 (citation omitted); see also id. at 554 (“In sum, the jury heard

overwhelming evidence that Hernandez had the specific intent to rape

both Bristol and Ryan, and that he murdered both women willfully,

deliberately, and with premeditation.”).

ROGERS V. DZURENDA 65

deliberation and premeditation, so that it must have been

formed upon preexisting reflection and not under a sudden

heat of passion or other condition precluding the idea of

deliberation.” It also found that Rogers “weigh[ed] and

consider[ed] the question of killing and the reasons for and

against such a choice and, having in mind the consequences,

he decide[d] to and [did] kill.” And the jury found beyond a

reasonable doubt that Rogers acted with the “unjustifiable or

unlawful motive or purpose to injure another, which

proceeds from a heart fatally bent on mischief or with

reckless disregard of consequences and social duty.” 15

As addressed below, the five errors identified by the

majority do not together constitute “cumulative prejudice.”

Wood, 64 F.3d at 1439. The factual sequence of the murders

and the prosecution’s evidence and closing arguments

together reveal the strength of the case for legal sanity.

Although anything is theoretically “possible,” Richter,

562 U.S. at 111, it is not reasonably likely that Rogers would

have obtained a different verdict with competent (or even

perfect) counsel. After all, “even the most competent of

counsel could not have altered the facts.” Hurel Guerrero v.

United States, 186 F.3d 275, 282 (2d Cir. 1999) (citation

omitted).

A. Opening Statement

The majority begins its prejudice analysis with defense

counsel’s opening statement. And it makes much of defense

counsel’s failure to define legal insanity and list the elements

15

For attempted murder, the jury necessarily found, beyond a

reasonable doubt, that Rogers “[t]ried and failed to murder Ray Horn,”

“[w]ith premeditation” and “malice aforethought.” And for grand

larceny, the jury found that Rogers “willfully” and “[w]ith the specific

intent to permanently deprive the owner,” stole a motor vehicle.

66 ROGERS V. DZURENDA

of the NGRI defense at that time. But the majority neglects

to mention what defense counsel did say. Defense counsel’s

opening highlighted Rogers’s bizarre statements and

behavior and told the jury that the evidence would show that

Rogers “was not behaving like a person who knew that he

had murdered three people and was running away from that

type of a crime”—the essence of the insanity defense.

Defense counsel also told the jury: “The most important

things that will come out of the District Attorney’s proof to

you is not whether Mark is a person who did these things but

the most important thing for you to remember is Mark’s

mental state at the time this happened through lay witnesses

and through the psychiatrists who later examined Mark.” 16

16

I don’t see how defense counsel discussing the legal requirements

for insanity, along with highlighting some of the evidence (as counsel

did), would have even benefited Rogers. The discussion of legal

requirements might have been off-putting in the opening or might have

predisposed the jury against Rogers as to the insanity defense before the

jury even heard the trial testimony. “By telling a simple story in an

opening, the lawyer will establish a theme, capture the jurors’ interest,

and help the jurors focus on the important parts of the testimony that is

coming.” Hon. Richard B. Klein, Trial Communication Skills § 21:3 (2d

ed., Nov. 2021 Update). Putting the legal elements of proving insanity

in such a story is unlikely to be something that would hold the jury’s

attention or even be remembered. And it is not intuitive that it would

help the defense. Defense counsel told the jury: “The officers from

Canada will tell you that Mark pulled out a pen . . . and said, ‘This proves

I’m the king of North America.’” The jury would remember that. The

same can’t be said of something like: “Now the judge will instruct you

at the conclusion of the case that you must find Mark not guilty by reason

of insanity if the defense proves to you by a preponderance of the

evidence—preponderance means more likely than not—that Mark was

legally insane. Now Mark is presumed legally sane, and the judge will

tell you what that means. Legal insanity is a diseased or deranged

condition of the mind which makes a person incapable of knowing or

ROGERS V. DZURENDA 67

The majority maintains that defense counsel’s failure to

explain the NGRI defense meant that “the jury was given

context for how the evidence that would be presented related

to the murder charge, but it was given inadequate context for

how the evidence would relate to the insanity defense.”

Majority Op. at 32–33. “As a result,” under the majority’s

assessment, “the jury had little context for understanding the

significance of the State’s evidence of Rogers’s bizarre

behavior before and after the crime, or the defense evidence

of mental illness.” Id. at 36. But with proper context,

featuring the elements of the NGRI defense in the opening

statement, the majority posits that the jury “would have been

primed to consider the testimony of the mental health experts

in the context of the defense’s NGRI theory.” Id. at 40.

Nowhere, however, does the majority explain the

standalone effect of a jury unprimed with the elements of the

NGRI defense at the outset. 17 Understandably so, because

the jury was primed right before it deliberated. The trial

judge instructed the jury on Rogers’s NGRI plea. He

explained that, although the prosecution bore the burden of

proving the elements of the crime beyond a reasonable

doubt, the defense bore the burden of proving legal insanity

by a preponderance of the evidence. And after stressing that

understanding the nature and quality of his act or makes a person

incapable of knowing or understanding that his act was wrong.”

While the majority takes me to task for this “range of contentions”

it claims are just my “assertions,” Majority Op. at 50 n.15, it ironically

“asserts” that defense counsel’s “omitting the proper [NGRI] context . . .

made the NGRI defense less likely to succeed,” Majority Op. at 33.

17

Still, the jury knew from the prosecution’s opening statement that

Rogers had the burden of showing legal insanity by a preponderance of

the evidence.

68 ROGERS V. DZURENDA

the inquiry centered on Rogers’s mental condition at the time

of the offenses, the judge described the two alternative ways

the jury could find Rogers legally insane under Nevada law.

The jury thus knew that the burden to prove legal insanity

fell on Rogers, that there were two pathways to finding

insanity, and that Rogers had to have been legally insane

when he killed the Strodes to succeed in his insanity defense.

Defense counsel’s supposedly underdeveloped opening

statement did not disrupt this context for the jury’s

deliberations. In this regard, neither Rogers nor the majority

cite any case supporting a finding of prejudice based on

defense counsel’s failure to recite the standard for a defense

in an opening statement. Cf. United States v. Rodriguez-

Ramirez, 777 F.2d 454, 458 (9th Cir. 1985) (“The timing of

an opening statement, and even the decision whether to make

one at all, is ordinarily a mere matter of trial tactics and in

such cases will not constitute the incompetence basis for a

claim of ineffective assistance of counsel.”). Defense

counsel’s failure to recite the standard here does not support

such a finding.

B. Drs. Rich & Richnak

In footnotes, the majority discusses defense counsel’s

failure to adequately prepare Drs. Rich and Richnak for their

testimony. Majority Op. at 36 n.10, 43 n.12. The majority

makes three distinct findings related to these two

psychiatrists: (1) they were unprepared to opine on the

ultimate issue of Rogers’s sanity at the time of the murders

because they were not given the same materials that

Dr. Pauly received; (2) they undermined Dr. Pauly by saying

they could not reach the ultimate issue; and (3) they were not

given historical records to aid their evaluation of Rogers’s

schizophrenia diagnosis, weakening their credibility. I

disagree with each prejudice finding.

ROGERS V. DZURENDA 69

First, the majority holds that “[i]f Drs. Rich and Richnak

had been adequately prepared, they would have had the same

materials as Dr. Pauly and would have therefore had the

tools to form an opinion on the ultimate issue.” Id. at 36

n.10. But the majority has no basis to determine that even

with these “tools,” Drs. Rich or Richnak would have

concluded that Rogers was legally insane when he

committed the crimes. Each expert would have conducted

an independent review of Rogers’s medical history and

compared that with their own evaluations to make that

determination. Having the same record as Dr. Pauly would

not change the fact that Rogers refused to discuss the events

with Drs. Rich and Richnak—the primary reason both

experts gave for being unable to opine on his sanity on the

day of the murders. The majority’s assumption that they

would reach the same conclusion as Dr. Pauly if provided

more materials is completely ungrounded, and more to the

point, completely at odds with their actual testimony.18

Counsel, no matter how competent, can only play the cards

they’re dealt. Here, their client claimed he could not

remember anything that happened on the day of the murders

(or said he was unwilling to discuss what happened on that

day), and Drs. Rich and Richnak said that precluded them

from opining on the ultimate issue. Aside from the very

likely damage to his case that Rogers caused by the claim of

amnesia as to the murders, it was Rogers’s assertions and not

18

Counsel testified at the habeas hearing that Drs. Rich and Richnak

were not called to testify on Rogers’s insanity, and that because Rogers

would not talk to them about the crimes, they felt they couldn’t testify to

his mental state at the time of the crimes. Of course, neither further

preparation of nor further access to materials by Drs. Rich and Richnak

could have changed Rogers’s decision not to talk to them about the

crimes.

70 ROGERS V. DZURENDA

defense counsels’ action that precluded Drs. Rich and

Richnak from opining on the ultimate issue.

But let’s counterfactually assume the majority is correct

as to what Drs. Rich and Richnak would have testified to had

they been prepared with the “same materials as Dr. Pauly.”

And let’s also assume the trial court would have allowed

three (or four, counting Dr. Molde) expert witnesses to

testify to the same thing. In such a hypothetical case, their

testimony would have been cumulative to Dr. Pauly’s

extensive testimony on the same point. The failure to

present this cumulative testimony is not prejudicial

ineffective assistance. See United States v. Schaflander,

743 F.2d 714, 718 (9th Cir. 1984). Finally, their opinion on

the ultimate issue would have been even less persuasive than

Dr. Pauly’s. Dr. Richnak admitted that he felt “deceived” by

Rogers, who had an “amazing recovery of recent and remote

memory . . . immediately after his competency hearing in

[the] courtroom.” And while Dr. Pauly examined Rogers

twice, for three and a half hours total, Dr. Rich performed

only one examination, which lasted “[a]pproximately an

hour and a half.” Thus, even if defense counsel had provided

Drs. Rich and Richnak with the appropriate “tools” to opine

on Rogers’s mental state at the time of murders, and even if

they then would have been able to opine on the ultimate issue

(contrary to their trial testimony), their testimony would not

have been reasonably likely to change the jury’s verdict.

Second, the majority states that “Drs. Rich and Richnak

could have been prepared to testify in a way that did not

contradict Dr. Pauly’s conclusion that he had enough

information to opine on insanity.” Majority Op. at 36 n.10.

The majority asserts that the defense counsel “left [the jury]

to wonder why only one of the testifying mental health

experts—and, conveniently, the hired defense expert—had

ROGERS V. DZURENDA 71

enough data to draw a conclusion on Rogers’s sanity.” Id.

This contention is refuted by the record. At the outset, the

majority’s first point shows that this second point is illogical.

Because Drs. Rich and Richnak were not provided with the

same materials Dr. Pauly used to prepare for his testimony,

a reasonable jury could differentiate each witness’s ability to

form an opinion based on the information they accessed.

The witnesses also explained to the jury precisely why they

could not reach the ultimate issue. Dr. Richnak testified on

cross-examination why he could not opine on it:

Q: Did you ever try to make a determination

on whether he knew right from wrong on

December 2nd, 1980, when these alleged

crimes were supposed to have taken

place?

A: I’m not able to do that.

Q: Why not?

A: He’s been unwilling to discuss the events

of December 2nd with me, where he was,

physically and geographically. He has

refused to discuss that part of his life with

me.

....

A: I find it difficult to comment on his

criminal responsibility.

Dr. Rich likewise testified (again on cross-examination) that

he did not evaluate Rogers “with regards to his mental state

at the time of the alleged offenses,” because Rogers told

Dr. Rich “that he didn’t remember the crimes he was

72 ROGERS V. DZURENDA

charged with.” 19 The limitations on these two witnesses

should not have affected the jury’s consideration of

Dr. Pauly’s conclusion. 20 And again, better preparation

could not have changed the facts.

Moreover, Dr. Pauly fully explained (on cross-

examination), why he could opine on Rogers’s sanity.

Dr. Pauly was asked about the propriety of giving the

diagnosis and testimony he did (that Rogers was

schizophrenic and legally insane at the time of the killings),

having only first seen him a year after the murders:

I think it’s very responsible practice to weigh

all of the evidence available and then render

the opinion that I made because it was very

clear that since I did not have the opportunity

19

In my view, there were two possible explanations for why Rogers

wouldn’t discuss the events of December 2nd. First, that Rogers

genuinely didn’t remember what happened (though no one testified,

either at trial or as part of the habeas case, that such highly focused

temporary amnesia was a symptom of schizophrenia). Or second, that

he did remember but didn’t want to discuss what happened with the

doctors (including because such a discussion might further show that he

was not legally insane). No matter how competent Rogers’s counsel

were, they wouldn’t have been able to persuade a jury that explanation

one was more likely than explanation two, or even that explanation one

was at all likely. Significantly, Rogers remembered what happened

enough to tell officers when he was arrested in Florida that he did it in

self-defense.

20

Dr. Richnak testified that “looking at . . . how [the act] occurred

. . . [would] not necessarily” indicate whether the defendant was legally

sane at the time of the act, unless “it was particularly bizarre.” Yet he

also testified that although “[i]t’s a very difficult type of decision,” it is

possible to “judge whether somebody did [a criminal] act knowing the

difference between right and wrong.” Dr. Richnak’s general opinions,

on balance, did not undermine Dr. Pauly’s testimony.

ROGERS V. DZURENDA 73

to examine Mark Rogers at the time of the

alleged crime, the next best thing that could

be done is to examine the evidence that is

available from those people who saw him on

the day of that crime.

I think that is a very appropriate thing to do

and that it has been the basis of my

conclusion to compare the descriptions of his

behavior at the time in question with my

examination of him ten months later.

I think that is . . . the only way that this

particular case could be approached. 21

Finally, the majority contends that “the opinions of

[Drs. Rich and Richnak] lacked credibility because trial

counsel did not provide them with relevant historical records

necessary to support their diagnosis, which the prosecutor

highlighted during cross-examination.” Majority Op. at 41

21

There are several schools of thought on the propriety of this type

of expert testimony. For example, Dr. Gutride, like Drs. Rich and

Richnak, had no opinion on whether Rogers could tell right from wrong

at the time of the killings. “[I]t would have been a tremendous leap for

me to draw a conclusion and say what he was like back then a year and

some months later going on what had happened.” But Dr. Gutride also

testified it was appropriate to “walk into a courtroom ten months after an

incident and be able to testify on whether or not the defendant knew right

from wrong at the time of that incident.” “It’s an accepted practice. We

are called upon to do that all the time.” I also note that since 1984,

Congress has deemed the practice impermissible in federal criminal

cases. “In a criminal case, an expert witness must not state an opinion

about whether the defendant did or did not have a mental state or

condition that constitutes an element of the crime charged or of a

defense. Those matters are for the trier of fact alone.” Fed. R. Evid.

704(b).

74 ROGERS V. DZURENDA

n.11. But the record demonstrates that Drs. Rich and

Richnak were shown to the jury to be reliable expert

witnesses, and they presented credible diagnoses of Rogers’s

schizophrenia. Dr. Richnak, who specialized in forensic

psychiatry and who was the medical director at Lake’s

Crossing, spent “twenty or thirty hours” observing Rogers

over a five-month period, conducted a “mental status

examination,” and “gathered [history] from various

sources,” all of which led him to diagnose Rogers as

“suffering from schizophrenia, paranoid type.” “Individuals

with schizophrenia . . . have difficulties with thinking, and

they [have] confused thoughts . . . [, and] often tell you,

‘[m]y thoughts are jumbled up or confused,’ or, ‘[m]y

thoughts stopped.” Dr. Richnak also did not agree with

Dr. Gutride’s diagnosis, which was “at variance to

[Dr. Richnak’s] diagnosis.” Dr. Richnak offered examples

of Rogers’s behavior in support of his diagnosis. 22 Indeed,

Dr. Richnak ended his testimony answering a question from

the court: “My final impression after reviewing all of the

material and having examined him on several occasions is

that he is suffering from schizophrenia, paranoid type.”

Dr. Rich, also a psychiatrist, diagnosed Rogers with

paranoid schizophrenia in remission—which he explained to

mean someone usually “has periods . . . when their

symptoms are much worse and then they have periods when

they aren’t as bad.” Dr. Rich described one incident where

Rogers jumped onto a car while trying to hitchhike, then

worried “that the two men driving the car were trying to kill

him.” Dr. Rich testified that “[p]aranoid schizophrenia is a

22

For example, Rogers was observed “standing very rigidly or

posturing” and “seemed to be in a trance,” staring directly into the sun.

During one interview, Rogers “showed some preoccupation on the

possibility of a nuclear attack.”

ROGERS V. DZURENDA 75

severe mental illness”—“a psychosis” that can cause the

person to “not know what is real and what is not real,” or to

“have fears and delusions,” such as “fears that someone is

trying to harm them in some way.” It can also cause a person

to “hear things that don’t exist or see things that are not

there.” Although Dr. Rich did not opine on the ultimate

issue, he did testify during cross-examination that there is

“necessarily” a connection between the diagnosis of

schizophrenia “and a person not being able to know right

from wrong.”

Contrary to the finding of the district court, the testimony

of Drs. Rich and Richnak was the opposite of “mostly

pointless.” First, the diagnosis of schizophrenia was

necessary (but, of course, not sufficient) to prove legal

insanity. As the court instructed the jury: “Legal insanity . . .

means a diseased or deranged condition of the mind which

makes a person incapable of knowing or understanding the

nature and quality of his act or makes a person incapable of

knowing or understanding that his act was wrong.” Here,

that “diseased or deranged condition of the mind” could have

only been schizophrenia.

The observations by both doctors showed the jury that

they had ample evidence on which to base their

schizophrenia diagnoses. The cross-examination’s focus on

their limited review of Rogers’s medical history could not

erase the examples they recounted from the minds of the

jury. Their testimony made the jury aware of the connection

between schizophrenia and legal insanity. Even if Drs. Rich

and Richnak could not offer an opinion on the ultimate

question of legal insanity because Rogers refused to discuss

the day of the crime with them, the jury could have taken

their testimony as strong evidence of Rogers’s schizophrenia

to bolster a finding that Rogers was legally insane. But the

76 ROGERS V. DZURENDA

jury rejected Rogers’s NGRI defense. No further

preparation for these witnesses’ discussion of Rogers’s

schizophrenia would have been reasonably likely to lead the

jury to reach the opposite conclusion.

For these reasons, any further preparation of Drs. Rich

and Richnak would not have been reasonably likely to alter

the jury’s rejection of Rogers’s NGRI defense. The

preparation of Drs. Rich and Richnak thus did not prejudice

Rogers in any of the ways discussed by the majority opinion.

C. Dr. Pauly

The majority also finds that Rogers’s NGRI defense was

prejudiced by defense counsel’s failure to adequately

prepare Dr. Pauly. 23 Dr. Pauly was the sole defense witness

“who was willing and able to testify to whether Rogers was

legally insane at the time of the offense.” Majority Op. at 36.

The majority believes that the inadequate preparation of

Dr. Pauly exposed his testimony “to attack on several

fronts,” including that “he only met with Rogers twice (for

under four hours total),” that “he was hired by defense

counsel for his opinion,” and that “he failed to review daily

progress notes [from Lake’s Crossing] in rendering his

opinion.” Id. at 36–37. But these shortcomings or supposed

shortcomings did not disadvantage Rogers in the way the

majority suggests.

23

I agree that defense counsel could have better prepared Dr. Pauly,

but I do not believe their preparation was deficient under Strickland. As

the majority opinion notes, defense counsel “did not meet with Dr. Pauly

in person, discuss with him the other expert reports that contradicted his

conclusion that Rogers was schizophrenic, or give him daily progress

notes from Lake’s Crossing that detailed Rogers’s behavior while he was

being evaluated.” Majority Op. at 10.

ROGERS V. DZURENDA 77

The majority finds Dr. Pauly’s testimony vulnerable

because he had only two meetings with Rogers and because

he acknowledged failing to review the Lake’s Crossing daily

progress notes. According to the majority, “[i]f Dr. Pauly

had been prepared with the progress notes, he would not

have had to admit on cross-examination that he did not

review the notes, which he conceded could have been ‘of

some value,’ and his credibility would not have been so

undermined.” Id. at 44. But the supposed concession to

which the majority refers was a noncommittal statement that

the notes could have been of some value, in supplement to

the other providers’ reports that he reviewed:

Q: You have indicated you looked at all the

reports from the other psychiatrists and

psychologists and other medical people

that have examined him, that is, the

defendant, since the time of his arrest, is

that correct?

A: I don’t know if it was everyone but

everyone in this folder, that is, seven

psychiatrists and three or four

psychologists.

...

A: I didn’t rely on any one report. I read this

document that is about an inch thick and

relied on everything in it together with

my own examination of the client.

Q: Did you review those documents, the

records of the defendant while he was in

Lake[’]s Crossing for six months, the

78 ROGERS V. DZURENDA

daily reports that show his behavior and

actions?

...

A: No. I only reviewed the bottom line, the

final reports that are in this folder.

Q: All right. Do you think that would have

been of any value to find out on a daily

basis for six months how the defendant

behaved while he was under observation

at Lake[’]s Crossing?

A: I think it could have been of some value,

yes.

Read in context, Dr. Pauly’s supposed concession—

which the majority believes so undermined his testimony—

hardly moves the needle. Even less so when considered

alongside Dr. Pauly’s adjacent testimony that he reviewed

the “final reports” of the “seven psychiatrists and three or

four psychologists,” totaling “about an inch thick” and

including “the bottom line” of the evaluations. Granted,

Dr. Gutride—one of ten or eleven practitioners—opined that

his reports “only very sketchily summarized” his daily notes.

But it is unclear whether any of the others felt similarly. And

as he noted to the jury, Dr. Pauly also reviewed the

prosecutor’s investigative reports of witnesses who saw

Rogers on the day of the killings and on three days soon

after. This all supplemented Dr. Pauly’s own two-part,

three-and-a-half-hour evaluation of Rogers. Of note, the

prosecutor never mentioned this supposed shortcoming in

his closing.

ROGERS V. DZURENDA 79

That Dr. Pauly acknowledged being hired by defense

counsel is a non-sequitur. 24 Nevada pays for expert services

for indigent defendants “as may be necessary for an adequate

defense,” see Nev. Rev. Stat. § 7.135 (1981), as do most, if

not all states. And in its closing statement, the defense

effectively rebutted this argument. Counsel noted that the

State of Nevada, not the public defender’s office, paid

Dr. Pauly—just as it paid the State’s investigator on the case.

And Dr. Gutride, whom the prosecution called as a witness,

was paid his entire salary by the State.

The majority also focuses on defense counsel’s failure to

adequately prepare Dr. Pauly by insufficiently investigating

Rogers’s background. It notes Rogers’s mother’s testimony

about Rogers’s “violent and impulsive behavior growing

up,” stressing that Dr. Pauly was unable “to place those

behaviors in the proper context” by explaining them “as

emblematic of the prodromal stage of schizophrenia and not

ASPD [antisocial personality disorder].” Majority Op. at 38,

43. The majority also bases its finding of prejudice on

“evidence of Rogers’s mother drinking while pregnant and

Rogers’s childhood abuse,” which “Dr. Pauly would have

testified [are both] contributing factors to the development

of schizophrenia.” Id. at 38.

But the majority’s concern that Dr. Pauly’s inability to

testify on these issues meaningfully reduced the overall

effectiveness of his testimony at trial is unsupported by the

record. Having a mother who drank while pregnant and

24

The court instructed the jury: “A witness who has special

knowledge, skill, experience, training or education in a particular

science, profession or occupation is an expert witness. An expert witness

may give his opinion as to any matter in which he is skilled.” It would

be odd for such a skilled person, retained by one side, to testify for free.

80 ROGERS V. DZURENDA

suffering as a victim of childhood abuse are contributing

factors to the later development of schizophrenia, as

Dr. Pauly has since acknowledged. But Dr. Pauly never

suggested that such contributing factors made it likely that

Rogers would develop schizophrenia. And indeed, he could

not have. The then-current version of the Diagnostic and

Statistical Manual of Mental Disorders (DSM-III) did not list

fetal alcohol exposure among the “[p]redisposing factors”

for schizophrenic disorders. See Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 186

(3d ed. 1980). And forensic psychiatrist Dr. Melissa

Piasecki, testified in the habeas proceeding that in 1981, the

medical community understood only that an unclear but

significant amount of fetal alcohol exposure led to children

born with facial, growth, and cognitive abnormalities.

Dr. Piasecki also noted that none of the contemporaneous

experts diagnosed Rogers with fetal alcohol syndrome or

related syndromes, despite documentation that he was

exposed to alcohol in utero.

Probing into Rogers’s past at trial might have opened the

door to damaging testimony about Rogers’s violent and

impulsive behavior when he was younger. 25 Thus, the

25

As a child, Rogers was reportedly expelled from Catholic

elementary school for hitting a nun, and suspended in high school for

hitting a teacher. He killed a dog that he usually played with after the

dog bit him, and he beat up and choked friends and acquaintances on

various occasions, including breaking a wooden chair over one’s head.

His juvenile criminal record included five petty theft offenses, a BB gun

firearms offense, operating a car without a driver’s license, and many

other motor vehicle offenses.

Rogers joined the Marine Corps but was discharged a few months

later for fraudulently enlisting by lying about his criminal record. Soon

after, he pleaded guilty to two felony fourth-degree aggravated assault

ROGERS V. DZURENDA 81

evidentiary value of Rogers’s childhood and exposure to

alcohol in utero in relation to his legal sanity during the

murders is limited, and Dr. Pauly’s inability to testify to that

effect did not prejudice Rogers’s NGRI defense.

Most importantly, but ignored by the majority,

Dr. Pauly’s testimony was first-rate. As discussed below,

Dr. Molde characterized Dr. Pauly’s testimony as a

“masterful job,” adding that he would have had nothing of

substance to add to it had he been called to testify. Dr. Pauly

testified that several doctors who examined Rogers

described him as schizophrenic, and that this was the most

consistent diagnosis. And he noted that the descriptions of

Rogers’s behavior at the time of the killings matched his own

observations ten months later of “classic symptoms of

psychotic thought disorder which is the hallmark of the

diagnosis of schizophrenia.” Dr. Pauly’s core conclusion

was that Rogers was legally insane at the time of the killings:

A: My opinion is that Mark Rogers was so

virtually psychotic at the time of the

crime, that he was suffering from

paranoid delusions, that he had been

under considerable stress . . . and given

his emotional status, that he was actively

psychotic and under that influence of

being paranoid, that he was incompetent

and unable to distinguish between right

and wrong.

...

charges. He failed to show up to a hearing in the second case and

forfeited his bond.

82 ROGERS V. DZURENDA

[Rogers] was psychotic and he was in a

very frightened and paranoid state

which is clearly documented by

witnesses who saw him immediately

before and others who described his

behavior immediately after the murders

and that this is consistent with my

reevaluation of him several months

later and that this is the description of a

psychotic paranoid schizophrenic and

on the basis of that diagnosis I’m saying

that he was delusional and, therefore,

unable to distinguish between right and

wrong at that time.

Q: And was he able to distinguish the

nature and quality of his acts?

A: I do not believe that he was.

Cross-examination hurt the prosecution as much as it

helped. And when it helped the prosecution, it had nothing

to do with inadequate preparation—it had to do with facts

that were inadequate to prove legal insanity. For example,

the prosecution (for reasons unknown) asked Dr. Pauly to

testify that two uncalled psychiatrists—Drs. Lincoln and

Chapel—also believed that Rogers did not know right from

wrong. Although Dr. Pauly acknowledged that Rogers had

suffered from an antisocial personality, he noted his

agreement with such assessment for an earlier period while

also observing that it was “not consistent with [his]

understanding of [Rogers’s] behavior in the time frame that

we are referring to here.” Turning a negative (antisocial

personality) into at worst a neutral (consistent with the

expert’s view of the facts) is the hallmark of an effective

expert.

ROGERS V. DZURENDA 83

Dr. Pauly admitted, as he had to, that even

schizophrenics vary in their ability to be coherent. But

before the prosecutor could ask another question, Dr. Pauly

added: “The fact that [Rogers] was able to talk coherently

one moment does not negate the fact that in the ride with the

person who picked him up that he spoke in a manner that

was described as rambling.” Again, the hallmark of an

effective expert.

Dr. Pauly also exploited some of the prosecutor’s

ineffective questions. At one point, the prosecutor asked

Dr. Pauly if it was true that there could be interpretations

other than his own. With that, Dr. Pauly pounced: “Oh, I

dare say that you would be able to get other interpretations

. . . but, my point is there is a good deal of consistency in the

diagnosis of seven psychiatrists who saw . . . Mr. Rogers.”

In another example, the prosecutor tried to make something

of Dr. Gutride’s different diagnosis. And Dr. Pauly

admitted, as he had to, that Dr. Gutride’s opinion was

contrary. But he went on at length with no objection from

the prosecutor:

A: That was the one divergent opinion.

Dr. Martin Gutride’s report was the

only one who did not speak with the

diagnosis of a psychosis although he

came close in using a schizo type of

personality.

He even acknowledged that this man has

an unusual personality that he diagnosed

as schizo type but which he diagnosed as

a personality disorder.

So, his was the one diagnosis, in my

opinion, that was not consistent.

84 ROGERS V. DZURENDA

Q: So, you disregarded his opinion from

that?

A: No, I didn’t disregard it. I noted it as

being a contradiction with the other ten.

Q: I see.

The quality of Dr. Pauly as an expert witness speaks for

itself.

These examples (among others throughout the record)

show that the majority views Dr. Pauly’s testimony in a way

entirely divorced from the record. The prosecutor scored

points only because the evidence of Rogers’s sanity was

overwhelming. Dr. Pauly did his best with the facts, as they

were, and the deficiencies in his preparation had no material

impact on his effective testimony.

D. Dr. Molde

I agree with the majority that counsel should have called

Dr. Molde, and I find that this error likely meets the

Strickland deficiency prong. Majority Op. at 19. I note,

though, that Dr. Molde did not go unmentioned. Dr. Pauly

testified that psychiatrist Dr. Molde had—like Drs. Pauly,

Rich, and Richnak—found that Rogers was a “paranoid

schizophrenic.”

I disagree, however, with the majority’s conclusion that

failing to call Dr. Molde was prejudicial. The majority’s

view is based on three central findings. First, Dr. Molde’s

testimony would “have confirmed Dr. Pauly’s testimony that

Rogers ‘did not know right from wrong or know the nature

and quality of his act.’” Majority Op. at 40(emphasis

added). Second, Dr. Molde would have been immune from

ROGERS V. DZURENDA 85

the “hired gun” attacks that Dr. Pauly received, as well as the

credibility attacks based on the time spent with Rogers. Id.

at 40–41, 43 n.12. Third, Dr. Molde’s testimony would have

“severely undercut” the prosecution’s witnesses. Id. at 41.

We have held that prejudice is not established where

unintroduced testimony was cumulative to the testimony

presented. See Schaflander, 743 F.2d at 718; cf. Clabourne

v. Lewis, 64 F.3d 1373, 1382 (9th Cir. 1995) (finding no

Strickland prejudice where four additional witnesses were

not interviewed to corroborate defendant’s taped

confession). This is an archetypal cumulative testimony

case.

First, as the prosecution argues, Dr. Molde’s testimony

“confirm[ing]” Dr. Pauly’s opinion of Rogers’s sanity

would have been cumulative. Majority Op. at 40. The

majority believes that “Dr. Molde would have explained

how the bystanders’ descriptions of Rogers’s behavior and

his numerous examinations allowed him to reach the

conclusion that Rogers was insane at the time of the

offense.” Id. at 40. Testimony was introduced referring to

odd and bizarre statements made by Rogers. For example,

according to a witness who drove him towards the Strode

residence, he stated, “Somebody is shooting rockets . . . and

one of these days it will hit my pyramid and blow me up.”

Rogers, 705 P.2d at 667 (alteration in original). Similarly,

when he was trying to cross the border into Canada, he told

the agents that “he considered himself . . . [the] Emperor of

North America,” that he “felt that [the Canadians] were the

good guys,” and that the CIA, FBI, and the mafia were after

him. It is unclear why another expert needed to situate these

particular facts for the jury when Dr. Pauly discussed his

evaluation of these statements and other similar behavior.

86 ROGERS V. DZURENDA

Dr. Pauly examined Rogers twice to determine his

mental state at the time of the alleged crimes and concluded

that Rogers was suffering from paranoid schizophrenia. He

testified at trial that he had reviewed the reports of the other

psychiatrists and psychologists who examined Rogers. He

recounted specific behaviors he observed and explained to

the jury how they were “associated with a certain kind of

psychiatric disorder.” In response to hypotheticals posed by

the defense counsel stipulating the bystanders’ observations

of Rogers on the days before the crime, Dr. Pauly testified

that he found evidence of “paranoia and grandiose

delusions” and “a lack of affect, all symptoms characteristic

of schizophrenia,” and that he also believed the “individual

was clearly psychotic.” After answering hypotheticals,

Dr. Pauly gave unequivocal testimony that Rogers “was so

virtually psychotic at the time of the crime . . . that he was

incompetent and unable to distinguish between right and

wrong” or “distinguish the nature and quality of his acts.”

During the evidentiary hearing for Rogers’s habeas petition,

Dr. Molde acknowledged that had he been called to testify,

he “would have just gotten up and said, hey, I like what

Dr. Pauly just said, let’s go with that. . . . I don’t know that

I would have covered anything that he didn’t.” Dr. Molde

said that he thought Dr. Pauly did a “masterful job” at trial

describing the insanity defense. Dr. Molde’s testimony, as

the majority realizes, would have been cumulative to

Dr. Pauly’s. Majority Op. at 40 (finding Dr. Molde would

“have confirmed Dr. Pauly’s testimony”). For that reason,

the lack of Dr. Molde’s testimo

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