Jeffrey D. Lundgren v. Betty Mitchell, Warden

MERRITT, Circuit Judge,

dissenting.

Lundgren testified that he killed a family of five cult members as a religious sacrifice. He did so, he said, because he received a command from God that this sacrifice was necessary to prepare for “Zion” and the “Second Coming.” I disagree with our Court’s decision and reasoning in section II.D.3. above rejecting Lundgren’s ineffective assistance of counsel claim based on trial counsel’s inexplicable failure to raise the defense of insanity. Other than insanity Lundgren had no defense. In many similar “deific decree” cases in which a “delusional” person like Lundgren professed to be following God’s command to kill, defense lawyers have almost uniformly entered an insanity plea — and the jury has accepted the defense in some of the cases. As we shall see, even the prosecutors in the case could not understand why Lundgren’s lawyers did not enter such a defense. I will also apply Ohio’s definition of insanity in light of a mental illness theory counsel overlooked in bypassing his only available defense. I will then show why, in light of these considerations, the conduct of Lundgren’s counsel was manifestly ineffective. The writ of habeas corpus should have issued in this case to require a new trial in which Lundgren would be allowed to present the insanity defense before the jury.

I. Insanity as a Defense

A. The Widespread Use of Insanity in Deific Decree Cases

For over two hundred years, trial counsel have presented the insanity defense in “deific decree” cases in many states, including Ohio, and in England. See State v. Lafferty, 20 P.3d 342, 363 (Utah 2001) (Mormon fundamentalist, who killed his sister-in-law and her infant child pursuant to God’s “removal revelation,” presented insanity defense to jury); People v. Coddington, 23 Cal.4th 529 , 97 Cal.Rptr.2d 528 , 2 P.3d 1081, 1103, 1110-14 (2000), overruled on different grounds by Price v. Superior Court, 25 Cal.4th 1046 , 108 Cal.Rptr.2d 409 , 25 P.3d 618 , 633 n. 13 (2001) (defendant presented insanity defense to jury after strangling chaperones of two girls he sexually abused professedly because God commanded the actions); State v. Blair, 143 N.H. 669 , 732 A.2d 448, 449-50 (1999) (counsel presented insanity defense to jury in case in which husband bludgeoned his wife and son with a hammer after experiencing a “trance” in which God revealed that he would be cast into the lake of fire if he refused to do so); People v. Serravo, 823 P.2d 128, 130 (Colo.1992) (en banc) (jury found defendant not guilty by reason of insanity for stabbing his wife “in order to sever the marriage bond” in accordance with God’s purported instructions); State v. Ryan, 233 Neb. 74 , 444 N.W.2d 610, 632 (1989) (cult leader entered plea of not guilty by reason of *785 insanity after following Yahweh’s “command” to torture and kill an “unfaithful” cult member); Laney v. State, 486 So.2d 1242, 1245-46 (Miss.1986) (defendant shot police officers because God purportedly commanded the act and presented insanity defense to jury); State v. Cameron, 100 Wash.2d 520 , 674 P.2d 650, 654 (1983) (en banc) (jury question regarding insanity defense existed when defendant implemented God’s “command” to stab repeatedly his stepmother to stop the “evil spirit” within her); State v. Malumphy, 105 Ariz. 200 , 461 P.2d 677, 678 (1969) (defendant, who shot and killed two co-employees due to his belief that God sanctioned the deeds, presented insanity defense to jury); State v. Di Paolo, 34 N.J. 279 , 168 A.2d 401, 407-08 (1961) (defendant repeatedly stabbed ex-girlfriend because God professedly commanded the actions and presented insanity defense to jury); People v. Schmidt, 216 N.Y. 324 , 110 N.E. 945, 945 (1915) (defendant, who claimed God commanded him to kill a woman as a sacrifice, presented insanity defense to jury); State v. Hudson, No. 01C01-9508-CC-00270, 1999 WL 77844 , at *1, 8 (Tenn.Crim.App. Feb.19, 1999) (appellate court remanded for entry of a judgment of not guilty by reason of insanity in case in which defendant shot her one-month-old nephew, believing that God had instructed her to kill “the son of Satan”); State v. McDaniel, No. 18805, 1998 WL 887184 , at *2-3 (Ohio Ct.App. Dec. 16, 1998) (defendant, after experiencing religious delusion that God commanded him to kill his wife with a baseball bat, presented insanity defense to jury); Ivery v. State, 686 So.2d 495, 499-503 (Ala.Crim.App.1996) (defendant, who claimed to be the “ninja of God” and to have followed God’s command “to kill people at will and to take their money as the spoils of victory,” presented insanity defense to jury); People v. Wilhoite, 228 Ill.App.3d 12 , 169 Ill.Dec. 561 , 592 N.E.2d 48, 55-58 (1991) (court found defendant not guilty by reason of insanity after she followed God’s “command” to shove her nine-year-old daughter out of apartment window to pass “a test to see if the defendant could get into heaven” prior to the imminent end of the world); Perkey v. Cardwell, 369 F.Supp. 770, 770-74 (S.D.Ohio 1973), aff'd, 492 F.2d 1244 (6th Cir.1974) (defendant claimed he was carrying out God’s orders by shooting victim and entered plea of not guilty by reason of insanity); United States v. Guiteau, 10 F. 161, 186 (D.D.C.1882) (defendant alleged he was following God’s command to kill the president and presented insanity defense to jury); Elizabeth Mehren, Fellow Inmate Guilty of Murdering Ex-Priest, Los Angeles Times, Jan. 26, 2006, at A15 (Massachusetts inmate, who claimed God commanded him to kill defrocked priest, presented insanity defense to jury); Mom Who Killed Kids with Rocks Committed to Mental Hospital, Chi. Trib., Apr. 7, 2004, at 8 (Texas jury found mother innocent by reason of insanity after she stoned two of her young sons to death with heavy rocks professedly in accordance with God’s instructions); Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 508 (1985) (jury acquitted defendant who pled insanity defense following attempted shooting of the king of England purportedly at God’s direction); cf . State v. Wilson, 242 Conn. 605 , 700 A.2d 633, 641 (1997) (“An individual laboring under a delusion that causes him to believe in the divine approbation of his conduct is an individual who, in all practicality, is unlikely to be able fully to appreciate the wrongfulness of that conduct.”). 1

*786 In fact, the insanity defense was even raised in the trial of one of Lundgren’s cult followers, see State v. Luff, 85 Ohio App.3d 785 , 621 N.E.2d 493, 498 (1993), but, to the puzzlement of the prosecutors, was not presented in Lundgren’s own case:

None of the cult defendants had as yet pled [not guilty by reason of insanity], even though the acts in question were so illogical, and some of the other conduct of the group members was so bizarre that the prosecutors had wondered why at least one of them had not entered such a plea.

Cynthia Stalter Sassé & Peggy Murphy Widder, The Kirtland Massacre 273 (1991) (full-length book co-written by one of Lundgren’s prosecutors).

B. The Origins of the Insanity Defense in Deific Decree Cases

As early as 1800, the defense of not guilty by reason of insanity was successful in a deific decree case in England. See generally Hadfield’s Case, 27 How. St. Tr. 1281 (K.B.1800). James Hadfield, a former British soldier, fired a horse pistol at King George III in Drury Lane Theatre but missed the King’s head by less than a foot-and-a-half. Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 487 (1985). Hadfield believed that God had told him to sacrifice himself to save the world and chose assassinating the King as the surest way of assuring his own death. Id. at 504-06. Renowned barrister Thomas Erskine defended Hadfield and entered an insanity plea, and the jury returned a verdict of not guilty by reason of insanity. Id. at 408, 508.

Forty-three years later, the House of Lords promulgated the M’Naghten rule, which provides the defense of insanity if, “at the time of the committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, [he] did not know he was doing what was wrong.” M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843). Use of the insanity defense in deific decree cases has been especially widespread in jurisdictions like Ohio following some form of the M’Naghten rule. See State v. Staten, 18 Ohio St.2d 13 , 247 N.E.2d 293, 295 (1969) (The Ohio Supreme Court “has always stated the substance of [the M’Naghten] rule as a part of its own test for determining whether an accused should be relieved of criminal responsibility for an act.”); Margaret E. Clark, Comment, The Immutable Command Meets the Unknowable Mind: Deific Decree Claims and the Insanity Defense after People v. Serravo, 70 Denv. U.L.Rev. 161, 169 (1992) (“The major cases dealing with the deific decree come from M’Naghten jurisdictions.”).

The classic example of insanity under the M’Naghten rule was the deific decree to kill. In 1844, one year after M’Naghten’s Case was decided, the Supreme Judi *787 cial Court of Massachusetts provided this illustration of insanity in a murder trial credited as the first American case to cite the M’Naghten test, Grant H. Morris & Ansar Haroun, “God Told Me To Kill”: Religion or Delusion?, 38 San Diego L.Rev. 973, 1004 (2001):

A common instance is where he fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive but sincere belief that what he is doing is by the command of a superior power, which supersedes all human laws, and the laws of nature.

Commonwealth v. Rogers, 48 Mass. (7 Met.) 500, 503 (1844).

In 1882, Charles Guiteau was tried for assassinating President James Garfield and relied upon the insanity defense, claiming that God told him to kill the President. The judge instructed the jury with citation to the above example of insanity and with his own illustration:

Another man, whom you know to be an affectionate father, insists that the Almighty has appeared to him and commanded him to sacrifice his child. No reasoning has convinced him of his duty to do it, but the command is as real to him as my voice is now to you. No reasoning or remonstrance can shake his conviction or deter him from his purpose. This is an insane delusion, the coinage of a diseased brain, as seems to be generally supposed, which defies reason and ridicule, which palsies the reason, blindfolds the conscience, and throws into disorder all the springs of human action.

United States v. Guiteau, 10 F. 161, 172 (D.D.C.1882). In applying the M’Naghten rule, the judge specifically informed the jury that “if [Guiteau] was under an insane delusion that the Almighty had commanded him to do the act, and in consequence of that he was incapable of seeing that it was a wrong thing to do,' — then he was not in a responsible condition of mind, and was an object of compassion, and not of justice, and ought to be now acquitted.” Id. at 186 .

Thirty years later, Justice Benjamin Cardozo, then writing for the New York Court of Appeals, concluded that, in the words of two commentators, the deific decree to kill presented “the strongest case for finding the defendant insane” under the M’Naghten rule. Morris & Haroun, supra, at 1007. Justice Cardozo recounted the previous two examples of insanity and provided another:

A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong.

People v. Schmidt, 216 N.Y. 324 , 110 N.E. 945, 949 (1915). According to Justice Cardozo, holding such a defendant criminally responsible would be “abhorrent,” and a jury would likely disregard a jury instruction directing otherwise. Id.

In more modern times, both before and after Lundgren’s trial, numerous courts, including at least two in Ohio, have recognized, either explicitly or implicitly, the deific decree doctrine as an appropriate basis for the insanity defense, especially in M’Naghten jurisdictions. See cases cited supra in section I.A.

C. Ohio’s Insanity Defense

Ohio’s definition of insanity applicable to Lundgren’s trial was, according to the state’s Supreme Court, “more liberal to those accused of crime” than the traditional M’Naghten rule, State v. Staten, 18 Ohio *788 St.2d 13 , 247 N.E.2d 293, 295 (1969), and was defined as follows: 2

1. One accused of criminal conduct is not responsible for such criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he does not have the capacity either to know the wrongfulness of his conduct or to conform his conduct to the requirements of law ....

2. In order to establish the defense of insanity where raised by plea in a criminal proceeding, the accused must establish by a preponderance of the evidence that disease or other defect of his mind had so impaired his reason that, at the time of the criminal act with which he is charged, either he did not know that such act was wrong or he did not have the ability to refrain from doing that act.

State v. Luff, 85 Ohio App.3d 785 , 621 N.E.2d 493, 498 (1993) (quoting Staten, 247 N.E.2d at 294 (syllabus by the court)). Thus, Ohio law’s definition of insanity had two elements: (1) mental disease or defect, and (2) a corresponding incapacity “either to know the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Id. The Supreme Court of Ohio has emphasized that “insanity is an issue for the jury to decide” and that “[t]he weight to be given the evidence and the credibility of the witnesses concerning the establishment of the defense of insanity in a criminal proceeding are primarily for the trier of the facts.” State v. Thomas, 70 Ohio St.2d 79 , 434 N.E.2d 1356, 1357-58 (1982); see also Ake v. Oklahoma, 470 U.S. 68, 81 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985) (“Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue ....”); Paul H. Robinson, Criminal Law § 9.3 (1997) (“What constitutes a mental disease or defect is a question for the jury.”); State v. McDaniel, No. 18805, 1998 WL 887184 , at *3 (Ohio Ct.App. Dec. 16, 1998) (insanity plea in deific decree case presented to jury); Perkey v. Cardwell, 369 F.Supp. 770, 771 (S.D.Ohio 1973), aff'd, 492 F.2d 1244 (6th Cir.1974) (insanity plea in deific decree case presented to trier of fact).

The following two sections apply both elements of Ohio’s definition of insanity to the Lundgren case and conclude that a jury could have justifiably considered Lundgren legally insane.

II. Mental Disease or Defect

A mental health theory upon which insanity could have been based was readily available at the time of Lundgren’s trial. Based on the diagnosis of Dr. Jeffrey L. Smalldon attached to Lundgren’s habeas petition, the psychiatric literature, and treatment of similar deific decree killings in the case law, there was at least a jury question as to whether Lundgren, a cult leader whose extreme and deranged religious views prompted his belief that God commanded him to kill a family of five, suffered from the mental condition known as delusional disorder with grandiose themes.

A. Overview of Delusional Disorder with Grandiose Themes

Although the definition of “delusion” and the propriety of encompassing religious beliefs within that definition are both somewhat unsettled, there is ample support in the psychiatric literature for the notion that some extreme beliefs like the deific decree to kill are delusional and grandiose. At the time of Lundgren’s tri *789 al, the term “delusion” was defined in the Diagnostic and Statistical Manual of Mental Disorders (rev.3d ed. 1987) (“DSM-III-R”), the “psychiatric profession’s diagnostic Bible,” Morris & Haroun, supra, at 1023 (quoting various sources), as:

A false personal belief based on incorrect inference about external reality and firmly sustained in spite of what almost everyone else believes and in spite of what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person’s culture or subculture (i.e., it is not an article of religious faith).

DSM-III-R at 395. 3 The DSM sets out various subtypes of delusional disorder. One such subtype is “grandiose delusion,” defined as “[a] delusion whose content involves an exaggerated sense of one’s importance, power, knowledge, or identity. It may have a religious, somatic, or other theme.” Id. at 396. The psychiatrist’s “Bible” further notes that people with grandiose delusions “can become leaders of religious cults.” Id. at 200. These definitions, both published by the American Psychiatric Association (“APA”), explicitly, though inartfully, embrace the notion that some religious beliefs are delusional. As two recent commentators have noted, “the DSM distinguishes between ‘authentic’ religious beliefs that are characterized as normal and ‘nonauthentic’ religious beliefs that may be characterized as abnormal, that is, psychopathological.” Morris & Haroun, supra, at 1037.

A chief criticism leveled at the DSM’s definition of delusion is its usage of the phrase “false belief,” which generates the obvious problem scientifically and legally of divining true from false religious beliefs. See Manfried Spitzer, On Defining Delusions, 31 Comprehensive Psychiatry 377, 378 (1990) (stating that the question of truth or falsity is inapplicable to religious beliefs). Responding to this dilemma, some scholars have proposed excluding all religious beliefs from constituting delusions, while others like Freud have characterized all religious belief as delusional. Id. at 379. In an article published the year of Lundgren’s trial, Dr. Manfried Spitzer dismissed both of these views as “ ‘quick and cheap’ solutions” and clinically unjustified, opting instead for the APA’s general view that some, not all, religious beliefs are delusional. Id. Dr. Spitzer differed with the APA’s DSM in defining delusion so as to accommodate more clearly the problem of religious delusions as “statements about external reality which are uttered like statements about a mental state, i.e., with subjective certainty and incorrigible by others.” Id. at 391.

Regardless of the definition of delusion, many, if not the vast majority of, mental health professionals agree with the APA and Dr. Spitzer that some purportedly religious beliefs and experiences should be considered delusional. The New Harvard Guide to Psychiatry, published over two years before Lundgren’s trial, describes both grandiose and religious delusions under the general heading “Schizophrenic Disorders.” Ming T. Tsuang, Stephen V. Faraone & Max Day, Schizophrenic Disorders, in The New Harvard Guide to Psychiatry 267-68 (Armand M. Nicholi, Jr., ed., 1988). According to the text, a patient claiming to be “king of the universe” because of his special relationship with God suffers from a grandiose delusion. Id. at 267. The text describes religious delusions in even greater depth:

*790 Religious delusions are false beliefs that involve religious or spiritual themes. The delusional status of a religious belief may be obvious, as in the case of a patient who collected a roomful of grapefruits because she believed they contained the essence of God. More than with other delusions, however, the delusional status of religious beliefs may be difficult to establish. A religious belief is not delusional if consistent with the patient’s cultural context. For example, many Jehovah’s Witnesses believe in the imminent end of the world. Such a belief would not be delusional if expressed by a member of that sect, but it might be delusional if expressed by a nonreligious person ... A delusional religious belief is likely to lead to functional impairment.

Id. at 267-68 (emphasis in original).

Following the DSM’s lead, a recent psychiatry textbook illustrates a grandiose type delusional disorder with a religious example:

A 51-year-old man was arrested for disturbing the peace. Police had been called to a local park to stop him from carving his initials and those of a recently formed religious cult into various trees surrounding a pond in the park. When confronted, he had scornfully argued that having been chosen to begin a new townwide religious revival, it was necessary for him to publicize his intent in a permanent fashion. The police were unsuccessful in preventing the man from cutting another tree and arrested him. Psychiatric examination was ordered at the state hospital, and the patient was observed there for several weeks. He denied any emotional difficulty and had never received psychiatric treatment. There was no history of euphoria or mood swings. The patient was angry about being hospitalized and only gradually permitted the doctor to interview him. In a few days, however, he was busy preaching to his fellow patients and letting them know that he had been given a special mandate from God to bring in new converts through his ability to heal. Eventually, his preoccupation with special powers diminished, and no other evidence of psychopathology was observed. The patient was discharged, having received no medication at all. Two months later he was arrested at a local theater, this time for disrupting the showing of a film that depicted subjects he believed to be satanic.

Benjamin James Sadock & Virginia Alcott Sadock, Kaplan & Sadock’s Synopsis of Psychiatry 517 (9th ed.2003).

Other sources similarly posit the existence of religious delusions. See Joseph Westermeyer, Some Cross-Cultural Aspects of Delusions, in Delusional Beliefs 216-17 (Thomas F. Oltmanns et al. eds., 1988) (describing study of patients with religious delusions); Robert L. Spitzer, Michael B. First, Kenneth S. Kendler & Dan J. Stein, The Reliability of Three Definitions of Bizarre Delusions, 150 Am. J. Psychiatry 880, 881 (1993) (discussing delusions with religious themes).

Perhaps the most clinically effective method for distinguishing authentic religious experience from insanity was uncovered in a study of how mental health professionals make such diagnoses. See Susan Sanderson, Brian Vandenberg & Paul Paese, Authentic Religious Experience or Insanity?, 55 J. Clinical Psychol. 607 (1999) (hereinafter “Sanderson Study”). The Sanderson Study asked sixty-seven mental health professionals to rate eighteen different religious beliefs as authentic religious experiences or as delusions with religious content. Id. at 609-10. The studied religious beliefs ranged from following a biblical passage to “cut off the hand that has sinned” by cutting out the habit of shopping to hearing the *791 voice of God telling a person to sacrifice his child. Id. Of the eighteen scenarios, the mental professionals considered the deific decree to sacrifice a child to be the least religiously authentic and the most delusional. Id. at 611. The authors offered this summary of their conclusions:

“The essential determining factor in the ratings was ... the degree to which religious experience deviated from conventional religious beliefs and practices. The more unconventional the experience, the less religiously authentic and less mentally healthy it was deemed to be.

The importance of deviation from cultural convention is underscored by the fact that the two experiences rated least authentic and mentally healthy were also the two that involved the most severe physical consequences: complying with a request from God to sacrifice one’s child, and following a literal interpretation of the biblical scripture to cut off one’s hand ... These results suggest that participants were doing something similar to what DSM-IV prescribes, using (implicit) cultural norms as the basis for evaluating religious experience and mental health.”

Id. at 614. 4

B. Lundgren’s Mental Condition

1. The Diagnoses of Dr. Smalldon and Dr. Schmidtgoessling

In his affidavit attached to Lundgren’s habeas petition, Dr. Jeffrey L. Smalldon, a psychologist licensed in Ohio, diagnosed Lundgren’s mental condition as follows:

[I]t is my opinion, within reasonable psychological certainty, that Mr. Lund-•gren suffers from both a severe character disorder and a psychotic disorder. Although I am unable to conclusively rule out the possibility of Paranoid Schizophrenia, in my opinion his psychotic condition is best described as either Delusional Disorder, Mixed Type (with grandiose and persecutory themes) or Psychotic Disorder Not Otherwise Specified.

(J.A. at 0118.) The specification “Mixed Type” “applies when no one delusional theme predominates.” DSM-IV-TR at 325. Accordingly, Dr. Smalldon’s characterization of Lundgren’s delusional disorder as “Mixed Type” presumably resulted from his identification both of grandiose themes, discussed above, and persecutory themes. DSM-IV-TR sets forth the following definition of “Persecutory Type” delusional disorder:

This subtype applies when the central theme of the delusion involves the person’s belief that he or she is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed in the pursuit of long-term goals. Small slights my be exaggerated and become the focus of a delusional system ... Individuals with persecutory delusions are often resentful and angry and may resort to violence against those they believe are hurting them.

Id.

At the time of Lundgren’s trial, DSM-III-R established five diagnostic criteria for delusional disorder. 5 The first and “es *792 sential” feature of delusional disorder is “the presence of a persistent, nonbizzare delusion” of at least one month’s duration that is not the product of another mental disorder. DSM-III-R at 199, 202. Distinguishing “bizarre” from “nonbizarre” delusions is not an exact science, especially in the context of religious delusions. See generally Robert L. Spitzer et al., supra (discussing three definitions of bizarre delusions). DSM-III-R, nonetheless, defines a “bizarre delusion” as “[a] false belief that involves a phenomenon that the person’s culture would regard as totally implausible.” DSM-III-R at 395. Examples of bizarre religious delusions include “the belief that, when swallowing, a person ingests parts of the Devil” and the delusion “of an elderly widow who believes that her body has been invaded by parasites; by traveling up and down her spinal column, they have created a magnetic current that causes rosary beads near her to rotate in a clockwise direction.” Robert L. Spitzer et al., supra, at 881. On the other hand, nonbizarre delusions generally involve situations that occur in real life, “such as being followed, poisoned, infected, loved at a distance, having a disease, [or] being deceived by one’s spouse or lover.” DSM-III-R at 202. A person incorrectly believing that he has a special message from a deity is an example of a nonbizarre religious delusion. See DSM-IV-TR at 325.

Lundgren’s belief that God commanded him to kill the Avery family to “purify” the cult so that the members could see God is most likely a “nonbizarre delusion” and is dissimilar to the “totally implausible” beliefs characterizing “bizarre” religious delusions. “I am a prophet of God,” Lund-gren claimed in his unsworn statement at the sentencing phase, “I am even more than a prophet.” (J.A. at 10894.) Dr. Smalldon summarized some of Lundgren’s beliefs that could be considered grandiose delusions:

He has claimed to possess special powers, among them the ability to predict future events; the ability to “sense” the presence of people and events which are at a geographical remove from where he is; and the ability to trigger “natural” events such as earth tremors. He reportedly told his followers that he was present at Golgotha when Jesus Christ was crucified, and that in other ways as well he was able to transcend the restrictions of time. He claims to have experienced multiple “visions” where he has had illuminated for him certain aspects of his special mission on earth.

(J.A. at 0108.) Lundgren reportedly announced that, because of his faithfulness in killing the Averys, Jesus Christ gave Lundgren the title “God of the whole Earth,” made him divine and immortal so that he could not be “pierced” by bullets, knives, or any other objects, and made him “the law.” Pete Earley, Prophet of Death: The Mormon Blood-Atonement Killings 309 (1991); (see also J.A. at 0105.). Moreover, Lundgren’s belief that God instructed him to kill the Avery family was “persistent” in that it lasted more than one month. He received the “revelation” roughly six months before the murder, see Earley, supra, at 267, and apparently maintains to this day that God commanded the killings.

The second diagnostic criterion is that “[a]uditory or visual hallucinations, if present, are not prominent [as defined in Schizophrenia, A(l)(6 ) ].” DSM-III-R at 202. A “hallucination” is “[a] sensory perception without external stimulation of the relevant sensory organ.” Id. at 398. Religious delusions are less common in Schizophrenia than various other types of delusions, id. at 188, and “[hjallucinations occurring in the course of an intensely shared religious experience generally have no pathological significance,” id. at 398. A “prominent hallucination” occurs “through *793 out the day for several days or several times a week for several weeks, each hallucinatory experience not being limited to a few brief moments.” Id. at 194. The mental health experts assessing Lundgren did not indicate that he experienced hallucinations, and, in any event, any hallucinations in fact occurring were apparently too brief to be considered “prominent.”

Third, the individual’s behavior is not “obviously odd or bizarre” apart from the delusions and their ramifications. Id. at 202. Accordingly, “[ijmpairment in daily functioning is rare.” Id. at 200. Lund-gren’s behavior did not appear to be “obviously odd or bizarre” apart from his religious beliefs and their ramifications. For example, he enjoyed watching movies and lifting weights. See (J.A. at 10970.); Cynthia Stalter Sassé & Peggy Murphy Widder, The Kirtland Massacre 45-46, 63-64 (1991).

Fourth, “[i]f a Major Depressive or Manic Syndrome has been present during the delusional disturbance, the total duration of all episodes of the mood syndrome has been brief relative to the total duration of the delusional disturbance.” DSM-III-R at 202. Both Major Depressive and Manic Syndrome are defined terms, neither of which appear to describe Lundgren. See id. at 217, 222; (cf. J.A. at 0093 (“He struck me [Dr. Smalldon] as neither depressed nor unusually anxious

Fifth, the individual “[h]as never met criterion A for Schizophrenia, and it cannot be established that an organic factor initiated and maintained the disturbance.” DSM-III-R at 202. Lundgren does not appear to meet criterion A for Schizophrenia, and has not been diagnosed as schizophrenic. 6 See id. at 194-95. The term “organic factor” refers to a substance (e.g., cocaine) or a general medical condition (e.g., Alzheimer’s disease). See id. at 119, 201; DSM-IV-TR at 324. The record does not show that Lundgren took drugs or had any such medical condition constituting an organic factor. (See J.A. at 0111.)

As Dr. Smalldon indicated, Lundgren appears to satisfy all five criteria for delusional disorder.

Dr. Nancy Schmidtgoessling, also a licensed psychologist, similarly testified during the penalty phase that, through his odd religious views, Lundgren became “more out of touch with reality,” “more caught up in revelations and his visions,” and “more grandiose.” (J.A. at 10829.) She noted Lundgren’s belief that he had “special powers” and could interpret “biblical things in a way no one else could” and that he “really believed .... that it was right to kill these folks because he believed that God commanded him to do so.” (J.A. at 10830, 10836.) She concluded that Lund-gren suffered from a mixed personality disorder with the predominate features being narcissism, paranoia, and anti-social traits. (J.A. at 10834.) Although she did not believe that Lundgren was insane or had a mental disease or defect (J.A. at 10860.), insanity is ultimately a question for the jury, not expert witnesses, to decide. See State v. Thomas, 70 Ohio St.2d 79 , 434 N.E.2d 1356, 1357 (1982).

2. Similar Cases Addressing Delusional Disorder

Trial counsel in two situations with striking similarity to the instant case presented an insanity defense to the jury, as least in part, on the basis of the defendant’s delusional disorder. In a rural Nebraska setting in the early 1980s, Michael *794 Ryan formed and led a religious cult developed out of the teachings of a group called the “Posse Comitatus.” State v. Ryan, 233 Neb. 74 , 444 N.W.2d 610, 617 (1989). Like Lundgren, Ryan stockpiled weapons in apocalyptic anticipation, practiced polygamy, and frequently “talked to Yahweh.” Id. at 618-19. In 1985, Ryan claimed that Yahweh ordered the appalling torture and death of one cult member who was “lacking in faith” so as to purify the farm before the immaculate birth of one of the cult member’s children. Id. at 620-22; Ryan v. Clarke, 281 F.Supp.2d 1008, 1058 (D.Neb.2003), aff'd, 387 F.3d 785 (8th Cir.2004), ce rt. denied, — U.S. —, 125 S.Ct. 2526 , 161 L.Ed.2d 1119 (2005).

At his trial in 1986, Ryan plead not guilty by reason of insanity. Ryan, 444 N.W.2d at 632 . To bolster this defense, Ryan presented the testimony of a psychiatrist and a psychologist. The psychiatrist diagnosed Ryan as suffering from paranoid schizophrenia with “auditory hallucinations, delusions, and psychosis.” Ryan, 281 F.Supp.2d at 1059 . At the penalty phase, the same psychiatrist further testified that Ryan was “actively psychotic” and “clearly delusional.” Ryan, 444 N.W.2d at 644 . The defense’s psychologist did not diagnose paranoid schizophrenia but instead concluded that Ryan suffered from a delusional disorder. Ryan, 281 F.Supp.2d at 1061 n. 10. The psychologist further stated that “Ryan had a paranoid personality disorder and a paranoid disorder characterized by active delusional thinking.” Id. at 1059 . The state’s psychiatrist disagreed with both of the defense’s experts, concluding that Ryan was not mentally ill and exhibited no evidence of psychosis. Id. at 1060-61 . Although the jury ultimately rejected the insanity defense, Ryan’s counsel did present the issue to the jury. Ryan, 444 N.W.2d at 617 .

Another strikingly similar situation arose out of two murders in Utah on July 24,1984. Ron and Dan Lafferty, two Mormon fundamentalist brothers, joined a “School of the Prophets” where they received “revelations” from God and embraced the doctrine of “plural marriage.” State v. Lafferty, 20 P.3d 342, 351 (Utah 2001); Jon Krakauer, Under the Banner of Heaven 247, 260 (large print ed.2003). In the spring of 1984, Ron received a “removal revelation” ordering the deaths of his sister-in-law and her infant daughter, who, according to the “revelation,” had become “obstacles” in God’s path. Lafferty, 20 P.3d at 352 . Two years later, the Lafferty brothers fulfilled the “revelation” with murders so horrific they inspired Jon Kra-kauer’s full-length book Under the Banner of Heaven. That same day, the brothers abandoned a plan to murder the local Mormon leader who had previously excommunicated Ron from the Mormon church. State v. Lafferty, 749 P.2d 1239, 1241 (Utah 1988).

At his first trial in 1985, Ron refused to present the insanity defense because he believed the jury would interpret that defense as an admission of guilt. 7 Id. at 1250 . He appealed the conviction and sentence in part on the ground that he was not competent to stand trial. Id. at 1242 . While in prison awaiting his 1985 trial, Ron attempted to hang himself, apparently resulting in some organic brain damage due to oxygen deprivation. Lafferty v. Cook, 949 F.2d 1546, 1552 (10th Cir.1991). At a competency hearing prior to his 1985 trial, medical examiners diagnosed him with two mental disorders: (1) an amnestic syndrome resulting from his suicide attempt, and (2) delusional disorder, also called a

*795 “paranoid delusional system.” Lafferty, 749 P.2d at 1242-43 ; see also DSM-III-R at 199 (referring to delusional disorder as “Delusional (Paranoid) Disorder” and noting that this category was called “Paranoid Disorder” in DSM-III). Over two years before Lundgren’s trial, the Utah Supreme Court summarized the examiners’ findings of Ron’s mental condition:

In describing the symptoms of the paranoid disorder, the examiners stated that Lafferty’s pervasive religiosity, which had been noted during the November, 1984 evaluation, had since developed into a “religious delusional system,” that Lafferty was unable to determine the boundaries between himself and spiritual beings, that he was experiencing “blurred ego boundaries,” that he was suffering from a “religious martyr complex,” that his mind had created a “paranoid pseudo-community involving the legal and social systems,” that one of Lafferty’s revelations was “reflective of Messianic grandiosity,” that Lafferty felt the hospital and the judicial system were agents of corrupt man-made law and were on trial before God, and that it was “impossible for him to [understand] the inconsistency of his objecting to others infringing on his liberty [while he claimed] an entitlement from God to infringe on the liberty of others.”

Lafferty, 749 P.2d at 1242-43 . In 1991, the Tenth Circuit granted Ron’s habeas petition on the ground that the Utah court misapplied the competency standard in light of Ron’s “paranoid delusional system.” Lafferty, 949 F.2d at 1556 .

Ron was retried in 1996 and, after spending over a decade in prison, allowed his counsel to pursue the insanity defense. Lafferty, 20 P.3d at 363 . The defense called a psychiatrist and a clinical and forensic psychologist who both testified that Ron suffered from a delusional disorder. Krakauer, supra, at 493-94. The state’s experts offered a different analysis, concluding that Ron’s extreme beliefs were not psychotic and, if anything, exhibited the symptoms of narcissistic personality disorder. Id. at 495-511. The jury again rejected the insanity defense, but, unlike Lundgren’s case, the jury, not counsel, decided the issue of sanity. Lafferty, 20 P.3d at 355 .

Counsel in other deific decree cases have also presented the insanity defense at least partly on the basis of the defendant’s delusional disorder. See, e.g., People v. Coddington, 23 Cal.4th 529 , 97 Cal.Rptr.2d 528 , 2 P.3d 1081, 1103, 1110-14 (2000), overruled on different grounds by Price v. Superior Court, 25 Cal.4th 1046 , 108 Cal.Rptr.2d 409 , 25 P.3d 618 , 633 n. 13 (2001); State v. Hudson, No. 01C01-9508-CC-00270, 1999 WL 77844 , at *3-4 (Tenn.Crim.App. Feb.19, 1999).

Therefore, in light of Dr. Smalldon’s diagnosis, the psychiatric literature, and similar cases, the issues of whether Lund-gren suffered from delusional disorder with grandiose themes and whether that condition constitutes a mental disease or defect should have been presented to the jury.

III. Knowledge of Wrongfulness or Incapacity to Conform Conduct to the Law

Lundgren also raises at least a jury question as to whether he could have met the second element of Ohio’s insanity defense — that he had an incapacity “either to know the wrongfulness of his conduct or to conform his conduct to the requirements of law.” State v. Luff, 85 Ohio App.3d 785 , 621 N.E.2d 493, 498 (1993) (quoting State v. Staten, 18 Ohio St.2d 13 , 247 N.E.2d 293, 294 (1969) (syllabus by the court)).

Determining whether Lundgren knew the wrongfulness of his conduct hinges on whether the term “wrong” refers to moral or legal wrong. Courts have disagreed on *796 this issue. In his majority opinion in People v. Schmidt, 216 N.Y. 324 , 110 N.E. 945, 949 (1915), Justice Cardozo strenuously advocated the “morally wrong” interpretation, deriding the alternative as leading to “abhorrent” results:

We hold, therefore, that there are times and circumstances in which the word ‘wrong’ as used in the- statutory test of responsibility ought not to be limited to legal wrong ... Obedience to the law is itself a moral duty. If, however, there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, we think it cannot be said of the offender that he knows the act to be wrong.

Various courts have followed this view. E.g., State v. Wilson, 242 Conn. 605 , 700 A.2d 633, 641 (1997); People v. Serravo, 823 P.2d 128, 137 (Colo.1992) (en banc); State v. Worlock, 117 N.J. 596 , 569 A.2d 1314, 1322 (1990); State v. Crenshaw, 98 Wash.2d 789 , 659 P.2d 488, 494 (1983) (en banc).

At the time of Lundgren’s trial in 1990, Ohio law was somewhat unsettled on this question, and the seminal insanity case from the Ohio Supreme Court left this question unaddressed. See generally Staten, 18 Ohio St.2d 13 , 247 N.E.2d 293 . Two unreported per curiam decisions from the Ohio Court of Appeals suggested that the term “wrong” refers to only legal wrong. State v. Huntley, No. C-800780, 1981 WL 9989 , at *2 (Ohio Ct.App. Sept.2, 1981) (per curiam); State v. Graves, No. C-790605, 1980 WL 353046 , at *3 (Ohio Ct.App. July 16, 1980) (per curiam). In a case postdating Lundgren’s trial, the Ohio Court of Appeals agreed with the “legally wrong” view. Luff, 621 N.E.2d at 499 . There is little question that Lundgren knew that it was against the law for him to kill the Avery family. There is also little question that Lundgren could not have known it to be morally wrong to do so if he believed God commanded the act. In light of the unsettled status of Ohio’s insanity law in 1990, Lundgren’s counsel should have put this question to the jury.

Regardless of Ohio’s definition of “wrong,” Lundgren appears to satisfy easily the alternative basis for establishing the second element of the insanity defense— that he had an incapacity “to conform his conduct to the requirements of law.” Staten, 247 N.E.2d at 294 (syllabus by the court). This alternative basis is perhaps the prime example of Ohio’s then “more liberal” approach to the insanity defense than the M’Naghten rule. See id. at 295. Punishing an individual without the capacity to avoid wrongful actions “would be like inflicting punishment upon an inanimate object, such as a machine, because it had, without any intelligent human intervention, caused some damage.” Id. at 298. As- Dr. Smalldon indicated, a person like Lundgren truly believing that God commanded him to kill probably does not have the capacity to conform his conduct to the láw’s requirements. (J.A. at 0114.)

After applying both elements of Ohio’s definition of insanity to Lundgren’s mental condition, Dr. Smalldon concluded that “within reasonable psychological certainly ... Mr. Lundgren’s clinical condition was such that he should have been seen as eligible at the time of his 1990 trial for a defense of not guilty by reason of insanity.” (J.A. at 0121.) I agree. A jury could have justifiably considered Lundgren legally insane.

IV. Ineffective Assistance of Counsel

I now turn to whether the failure to present the insanity defense constituted ineffective assistance of counsel. The Sixth Amendment, as incorporated through the Due Process Clause of the Fourteenth Amendment, guarantees a criminal defendant in state court proceedings the right “to have the Assistance of *797 Counsel for his defence.” Strickland v. Washington, 466 U.S. 668, 684-85 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). A violation of this right has two elements: a petitioner must show (1) that counsel’s performance was deficient, and (2) that the deficiency prejudiced the defense. Id. at 687 , 104 S.Ct. 2052 . It is beyond dispute that the Strickland standard, which predated Lundgren’s trial, constitutes “clearly established Federal law, as determined by the Supreme Court of the United States.” See Williams v. Taylor, 529 U.S. 362, 391 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

A. Deficiency

The assistance of Lundgren’s counsel was deficient based on the conduct of similarly situated counsel, the ABA guidelines for counsel in death penalty cases, and the availability of a mental health theory supporting an insanity defense. To establish deficiency, the first element of the Strickland test, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 . One indicium of reasonableness is the conduct of other counsel in similar situations. As discussed in section I.A. above, for over two hundred years, defense counsel have almost uniformly presented the insanity defense in deific decree cases in numerous jurisdictions. Courts also look to the ABA standards for counsel in death penalty cases as “the guiding rules and standards to be used in defining the ‘prevailing professional norms’ in ineffective assistance cases.” Hamblin v. Mitchell, 354 F.3d 482, 486 (6th Cir.2003) (citing Wiggins v. Smith, 539 U.S. 510, 524 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003)). The 1989 ABA Guidelines for counsel in death penalty cases published over a year before Lund-gren’s trial exhort counsel to conduct investigations relating to the guilt phase, to explore the defendant’s mental state, to collect information relevant to the defendant’s mental history, and to secure the assistance of experts necessary for preparation of the defense. ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1, pp. 10-12 (1989). The “unique nature of the death penalty” intensifies this duty to investigate the case. Id., commentary, p. 55. Similarly, the 2003 ABA Guidelines, which “merely represent a codification of longstanding, common-sense principles of representation understood by diligent, competent counsel in death penalty cases,” Hamblin, 354 F.3d at 487 , direct attorneys to investigate issues pertaining to guilt and penalty regardless of “overwhelming evidence of guilt.” ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.7(A)(1), p. 76 (2003). The commentary to the Guidelines emphasizes that, “[i]n capital cases, the mental vulnerabilities of a large portion of the client population compound the possibilities for error” and that counsel has a duty “to investigate and re-investigate all possible defenses.” Id., commentary, p. 78. The 1989 ABA Guidelines further instruct counsel to formulate a defense theory and note that “[t]he possibility that the client will be sentenced to death increases the need to litigate potential issues at all levels.” ABA Guidelines 11.7.1(A), p. 16 (1989); id. at 11.5.1, commentary, p. 59. The 2003 ABA Guidelines similarly counsel attorneys to “consider all legal claims potentially available,” to “thoroughly investigate the basis for each potential claim,” and to “be significantly more vigilant about litigating all potential issues at all levels in a capital case than in any other case.” ABA Guidelines 10.8(1)-(2), p. 86 (2003); id. at 10.8, commentary, p. 89.

Not surprisingly, the failure to present the insanity defense in a deific decree case has been held to violate Strickland :

*798 It appears that a great deal of evidence of appellant’s existing mental illness was available, and appellant’s counsel failed in presenting his only defense to the jury for consideration ...

[I]n light of the tremendous amount of available defense evidence of insanity, and the inadequacy of the State’s evidence to meet his burden, we cannot say appellant’s trial was a true test of the adversarial process nor counsel’s approach a reasonable fascimile of trial strategy ...

We find that appellant herein was denied an adequate defense ... Without the benefit of the defense evidence, the fact that appellant simultaneously labored under the delusion that his acts were directed and authorized by God was not made known to the jury.

Galloway v. State, 698 P.2d 940, 941-42 (Okla.Crim.App.1985). Other courts have concluded that a failure adequately to prepare and to present an insanity defense is ineffective where there are serious questions about the defendant’s mental condition and no other plausible defense is available. See Wood v. Zahradnick, 578 F.2d 980, 982 (4th Cir.1978); United States v. Fessel, 531 F.2d 1275, 1278-79 (5th Cir.1976); Brooks v. Texas, 381 F.2d 619, 622, 625 (5th Cir.1967); Goodwin v. Swenson, 287 F.Supp. 166, 167 (D.Mo.1968); People v. Jones, 6 Mich. Law. Wkly. 1322 (Aug. 31, 1992) (summary of unreported decision of Michigan Court of Appeals); cf. Alvord v. Wainwright, 469 U.S. 956, 959 , 105 S.Ct. 355 , 83 L.Ed.2d 291 (1984) (Marshall, J., dissenting from denial of grant of certiora-ri) (“[Cjounsel had a duty to investigate his client’s case and make a minimal effort to persuade him to follow the only plausible defense [the insanity defense].”); Brennan v. Blankenship, 472 F.Supp. 149, 157 (D.Va.1979), aff'd, 624 F.2d 1093 (4th Cir.1980) (counsel was ineffective in failing both to investigate defendant’s case and to advise him as to the insanity defense, the only plausible defense in the case).

Our Court’s decision in the instant case rightly quotes Strickland, 466 U.S. at 690-91 , 104 S.Ct. 2052 , for the propositions that “counsel has a duty to make reasonable investigations” and that “[strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Our Court concludes that Lundgren’s trial counsel made a reasonable investigation because they hired two mental health experts, both of whom apparently were not willing to testify that Lundgren suffered from a mental illness of any severity. In a capital case, however, defense counsel’s “duty to make reasonable investigations” into the mental health of an apparently deranged client does not begin and end with hiring two mental health professionals. Had Lundgren’s counsel “investigated and re-investigated” Lundgren’s mental condition, they would have uncovered the large body of psychiatric literature describing “delusional disorder” and its connection to religious delusions and cult leadership. Had Lundgren’s counsel been “significantly more vigilant about litigating all potential issues,” they would have discovered that almost all similarly situated counsel in the past two centuries have presented the insanity defense. The duty to investigate, to prepare, and to present the insanity defense was intensified not only because this is a death penalty case, but also because there simply was no other possible defense.

Our Court further states that, “[g]iven counsel’s information at the time of trial,” Lundgren’s counsel was reasonable in declining to present the insanity defense. The state court’s opinion denied relief under this same rationale. See State v. Lundgren, No. 97-L-110, 1998 WL 964592 , at *6 (Ohio Ct.App. Dec. 18, 1998), *799 dismissed, appeal not allowed, 85 Ohio St.3d 1465 , 709 N.E.2d 171 (1999) (“[Biased upon the information available to appellant’s trial counsel, there was no basis for the entry of a plea of not guilty by reason of insanity.”). It is little wonder that an unreasonable investigation produced little evidence to corroborate the defense. 8 The basic point is that, if Lund-gren’s counsel had conducted a reasonable investigation into Lundgren’s mental health, they would have discovered sufficient evidence to do what virtually every other similarly situated counsel has done for over two centuries — present the insanity defense to the jury.

Our Court also remarks that the failure of Lundgren’s counsel to present the insanity defense was a “reasonable strategic choice.” Counsel, however, cannot make a strategic choice if he does not know what the law is. Lundgren’s counsel undertook no comprehensive study of the law or mental health theories and, therefore, had insufficient information upon which to base a strategy. In lieu of making the obvious choice to investigate and to present their client’s only possible defense, Lundgren’s counsel conceded guilt in the opening statement and then opted “to hurry through the first stage of the murder trial” with few cross-examinations and without calling any witnesses to defend Lundgren. Pete Earley, Prophet of Death: The Mormon Bloodr-Atonement Killings 423, 425 (1991). By declining to present the insanity defense, Lundgren’s counsel ensured that the trial focused only on the Averys’ tragic deaths and rendered irrelevant any evidence of Lundgren’s mental condition or of his religious rationale for the killings. See Davis v. State, 118 Ohio St. 25 , 160 N.E. 473 , 476 (1928) (“It is not a defense to a prosecution ... that the accused is a member of a religious society and that the representation made alleged to constitute the offense was a part of the religious belief of the alleged offender.”). 9 This conduct could hardly be described as anything but deficient.

B. Prejudice

The failure of Lundgren’s counsel to present the insanity defense was prejudicial because a complete and accurate presentation of Lundgren’s mental condition could have resulted in a verdict of not guilty by reason of insanity as has occurred in some similar cases, or, at least, because such a portrayal could have spared Lundgren the death sentence at the penalty phase. To establish prejudice, the second component of the Strickland standard, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 *800 U.S. at 694 , 104 S.Ct. 2052 . Lundgren must demonstrate that “counsel’s errors were serious enough to deprive the petitioner of a proceeding the result of which was ‘reliable.’ ” Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir.1995). Lundgren has sufficiently demonstrated that the failure of his counsel to present his only possible defense — the insanity defense — and to provide corroborating evidence, including expert testimony, “undermines confidence in the outcome” of his guilt and sentencing phases.

One court found prejudice in a deific decree case in which counsel failed to present the insanity defense:

Had appellant’s evidence of insanity been presented at trial, there is a substantial possibility that the State would have been unable to prove his sanity beyond a reasonable doubt. Thus, the prejudice that appellant suffered from his counsel’s deficiencies is obvious.

Galloway v. State, 698 P.2d 940, 942 (Okla.Crim.App.1985).

That finding is not surprising in light of the insanity defense’s occasional success in cases where the defendant claims that God commanded the killing. A verdict of not guilty by reason of insanity has been entered in at least five deific decree cases within the last two decades. In State v. Hudson, No. 01C01-9508-CC-00270, 1999 WL 77844 , at *1 (Tenn.Crim.App. Feb.19, 1999), the defendant shot her one-month-old nephew, believing that God had instructed her to kill “the son of Satan.” Two mental health experts testified that she suffered from delusional disorder, and another expert diagnosed her with major depressive disorder. Id. at *3-4. The Tennessee Court of Criminal Appeals vacated the jury verdict and remanded for entry of a judgment of not guilty by reason of insanity. Id. at *8. Similarly, in People v. Wilhoite, 228 Ill.App.3d 12 , 169 Ill.Dec. 561 , 592 N.E.2d 48, 50, 52 (1991), Wilhoite followed God’s “voice” when she shoved her nine-year-old daughter out of the eighth-story window of their apartment in order to pass “a test to see if [Wilhoite] could get into heaven” prior to the imminent end of the world. Wilhoite was found not guilty by reason of insanity. Id. at 58 . In People v. Serravo, 823 P.2d 128, 131 (Colo.1992) (en banc), Serravo, professedly implementing God’s instructions, stabbed his wife “in order to sever the marriage bond.” The jury found Ser-ravo not guilty by reason of insanity. Id. at 130 . Likewise, a Colorado judge found a defendant not guilty by reason of insanity after professedly following God’s direction to kill her husband in order to use his life insurance proceeds to help child victims of Mafia-prduced pornography. Karen Rouse, Woman Is Ruled Insane in Killing, Denver Post, Apr. 25, 2001, at B-01. Most recently, a jury found Deanna Laney innocent by reason of insanity after she stoned two of her young sons to death with heavy rocks purportedly in accordance with God’s command. Mom Who Killed Kids with Rocks Committed to Mental Hospital, Chi. Trib., Apr. 7, 2004, at 8. The insanity defense has also benefit-ted defendants in other deific decree cases. See Richard Moran, The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800), 19 Law & Soc’y Rev. 487, 508 (1985) (British jury found defendant not guilty by reason of insanity following his attempted shooting of the king at the purported direction of God); Carol Delaney, Abraham on Trial: The Social Legacy of Biblical Myth 35, 66 (1998) (providing first-hand account of California jury’s acquittal of defendant based on insanity defense in deific decree case); People v. Sword, 29 Cal.App.4th 614 , 34 Cal.Rptr.2d 810, 812 (1994) (defendant found not guilty by reason of insanity and guilty of second degree murder after shooting and killing tenant in accordance with God’s “command”); People v. Hudec, *801 213 Cal.Rptr. 184 , 186, 189 (Cal.Ct.App. Apr.29, 1985) (ordered not to be published by California Supreme Court) (defendant found not guilty by reason of insanity and guilty of voluntary manslaughter after killing his father professedly because God told him to do so).

In the instant capital case, where “death is different” and “doubts ... should be resolved in favor of the accused,” DePew v. Anderson, 311 F.3d 742, 751 (6th Cir.2003) (quoting Andres v. United States, 333 U.S. 740, 752 , 68 S.Ct. 880 , 92 L.Ed. 1055 (1948)), failing to present Lundgren’s only possible defense — a defense with a track record of some success in similar cases— undermines confidence in the trial’s outcome.

A further reason to find prejudice is the potential mitigating effect a proper presentation of Lundgren’s mental condition could have had in the sentencing phase. “Under federal law, one juror may prevent the death penalty by finding that mitigating factors outweigh aggravating factors.” Hamblin v. Mitchell, 354 F.3d 482, 493 (6th Cir.2003). The prejudice prong is satisfied if “there is a reasonable probability that at least one juror would have struck a different balance.” Wiggins v. Smith, 539 U.S. 510, 537 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). Had Lundgren’s trial counsel effectively investigated his mental condition and presented an insanity defense to the jury, such a presentation would have given any juror a legal justification for declining to impose the death penalty. Cf. Delaney, supra, at 65-66 (account of jury deliberations in deific decree case resulting in verdict of not guilty by reason of insanity).

C. Footnote 6 of the Court’s Opinion

The problem with my colleagues’ response in footnote 6 to my view is that it assumes that defense counsel had no obligation to do the legal research necessary to find the many similar cases that rely on the insanity defense in “deific decree” cases and to formulate a defense strategy with some chance of success. My colleagues also assume that defense counsel had no obligation to look into the psychiatric literature themselves in order to understand the theory of insanity that defense counsel used in all the other similar cases — in some of which the defense was successful.

This is an interesting and unusual case, both legally and psychologically; and one would think that defense counsel would feel the professional responsibility, as well as have enough natural curiosity to inquire themselves into the relevant legal and psychological literature. They obviously did not do any of this research or develop any legal theory that might have some prospect of avoiding the death chamber for their client. In my view that constitutes ineffective assistance of counsel, no matter how odious the crime or barbaric the murder.

Although my colleagues may be correct in pointing out that, in deific decree cases, the insanity defense is unsuccessful more often than it is successful, our Court downplays those instances of success by stating that “the defense has only been successful four times.” My dissent, however, recounts seven instances of verdicts of not guilty by reason of insanity in such cases, most of which occurred in the last two decades. The number may well be much higher because “deific decree cases have also been resolved at the trial level ... with insanity verdicts that were not ap-pealable due to double jeopardy concerns.” See Morris & Haroun, supra, at 1011-12. Moreover, in light of Ohio’s definition of insanity that was then “more liberal to those accused of crime” than the traditional M’Naghten rule, State v. Staten, 18 Ohio St.2d 13 , 247 N.E.2d 293, 295 (1969), counsels’ oversight was all the more egregious.

*802 In addition, I am not convinced that polling a delusional defendant to determine whether he believes he is insane should be a primary factor in counsel’s decision to pursue the only plausible defense in a capital case. See Brennan v. Blankenship, 472 F.Supp. 149, 156 (D.Va.1979), aff'd, 624 F.2d 1093 (4th Cir.1980) (“Under any professional standard, it is improper for counsel to blindly rely on the statement of a criminal client whose reasoning abilities are highly suspect.”).

Y. CONCLUSION

The failure of Lundgren’s counsel to present the insanity defense was manifestly ineffective in light of the deific decree case law, the ABA’s guidelines in death penalty cases, the availability of an applicable mental health theory, and the ensuing prejudice from trying a capital case without presenting the only plausible defense. For the foregoing reasons, I dissent.

. I am aware of only a few deific decree cases in which the insanity defense was not presented. In one of them, the failure to do so was held to constitute ineffective assistance of counsel. Galloway v. State, 698 P.2d 940, 942 (Okla.Crim.App.1985) (defendant, at the pro *786 fessed direction of God, "drove demons out” of his neighbor by killing him). In another, the defendant represented himself. Jon Kra-kauer, Under the Banner of Heaven xxii-xxiii (large print ed. 2003) (Mormon fundamentalist killed his sister-in-law and her infant child pursuant to God’s "removal revelation”). The brother of the aforementioned defendant declined to raise the insanity defense in his first trial because he believed the jury would interpret that defense as an admission of guilt, but, in his retrial, allowed counsel to present the insanity defense. State v. Lafferty, 20 P.3d 342, 363 (Utah 2001); State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988). In addition, prosecutors wondered why some of Lundgren's followers did not raise the insanity defense. See Cynthia Stalter Sassé & Peggy Murphy Widder, The Kirtland Massacre 273 (1991).

. Ohio has since changed its definition of insanity. See State v. Luff, 85 Ohio App.3d 785 , 621 N.E.2d 493, 498 (1993).

. The current version of the DSM, Diagnostic and Statistical Manual of Mental Disorders (rev. 4th ed. 2000) ("DSM-IV-TR”), provides quite similar definitions of "delusion” and of “grandiose delusion” to those found in DSM-III-R. See Morris & Haroun, supra, at 1025.

. Two commentators disagreed with the Sanderson Study’s conclusion that the participants were essentially following the DSM’s prescriptions, arguing instead that the “DSM-IV’s discussion of ethnic and cultural considerations was clearly intended to expand the scope of ‘normal’ thought beyond the ideas of the dominant culture, not to contract it to conforming views of the orthodox.” Morris & Haroun, supra, at 1040.

. DSM-IV-TR at 329 provides essentially the same five criteria.

. Dr. Smalldon asserted that "I am unable to conclusively rule out the possibility of Paranoid Schizophrenia” in paragraph 65 of his affidavit. (J.A. at 0118.)

. Dan Lafferty defended himself, was sentenced to life in prison, and apparently has not appealed the verdict or sentence. See Krakauer, supra, at xxii-xxiii.

. One district court hypothesized the consequences of a failure to investigate in the celebrated trial of James Hadfield:

Even the great Thomas Erskine would not have been able to obtain the acquittal of James Hadfield if he had not investigated the facts of that case ... Erskine located thirty-two witnesses to prove, in the words of Lord Kenyon, the trial judge, that at the time Hadfield "committed this offense, and a most horrid one it was, he was in a very deranged state.”

Goodwin v. Swenson, 287 F.Supp. 166 , 183 n. 11 (D.Mo.1968).

. Courts have long distinguished between cases involving religious motivation and those professedly involving God's command to kill. As Justice Cardozo stated, the insanity defense requires a showing of a mental disease or defect, a showing satisfied by a person suffering from "an insane delusion” that God commanded him to kill. People v. Schmidt, 216 N.Y. 324 , 110 N.E. 945, 949-50 (1915). On the other hand, a person who kills because of a religious belief but does not suffer from a mental disease or defect cannot establish insanity. Id. at 950 .