While I concur in Judge Suhrheinrich's opinion  [*63]  as an accurate statement of the current state of the law in our circuit, I write separately to note the continuing oddity of the circumstances in cases such as this. To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. Mills v. Maryland, 486 U.S. 367, 375-84, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that "ineffective" counsel was provided at the penalty phase. See Harries v. Bell, 417 F.3d 631, 637-39 (6th Cir. 2005); Hamblin v. Mitchell, 354 F.3d 482 (6th Cir. 2003), cert. denied, 543 U.S. 925, 160 L. Ed. 2d 223, 125 S. Ct. 344, 160 L. Ed. 2d 223 (2004); Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), cert. denied, 541 U.S. 1095, 124 S. Ct. 2815, 159 L. Ed. 2d 261 (2004); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003); Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001),   [*64]  cert. denied, 535 U.S. 940, 152 L. Ed. 2d 231, 122 S. Ct. 1323 (2002); Cone v. Bell, 243 F.3d 961 (6th Cir. 2001), rev'd and remanded by Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000), cert. denied, 534 U.S. 943, 122 S. Ct. 322, 151 L. Ed. 2d 241 (2001); Gall v. Parker, 231 F.3d 265 (6th Cir. 2000), cert. denied, 533 U.S. 941, 121 S. Ct. 2577, 150 L. Ed. 2d 739 (2001) (suggesting that penalty phase faults might have been sufficient for habeas relief had guilt phase faults not been sufficient for relief); Carter v. Bell, 218 F.3d 581 (6th Cir. 2000); Combs v. Coyle, 205 F.3d 269 (6th Cir.), cert. denied, 531 U.S. 1035, 121 S. Ct. 623, 148 L. Ed. 2d 533 (2000); Austin v. Bell, 126 F.3d 843 (6th Cir.), cert. denied, 523 U.S. 1088, 118 S. Ct. 1547, 140 L. Ed. 2d 695 (1998); Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995), cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996). See also Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002), cert. denied, 538 U.S. 947, 123 S. Ct. 1621, 155 L. Ed. 2d 489 (2003)   [*65]  (reversing district court's grant of habeas relief based on ineffective assistance of counsel during penalty phase); Henderson v. Collins, 262 F.3d 615 (6th Cir. 2001), cert. denied, 535 U.S. 1002, 122 S. Ct. 1572, 152 L. Ed. 2d 492 (2002) (same); Abdur'Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. denied, 534 U.S. 970,122 S. Ct. 386, 151 L. Ed. 2d 294 (2001) (same); Scott v. Mitchell, 209 F.3d 854 (6th Cir.), cert. denied, 531 U.S. 1021, 121 S. Ct. 588, 148 L. Ed. 2d 503 (2000) (same). Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever.

And yet, in most cases, and including this one, the ineffectiveness consists in not making greater efforts to dig up and present material that, the courts speculate, would help rather than hurt the defendant. Frazier v. Huffman, 343 F.3d at 794-99. Indeed, our courts, have specifically held that there is no need to show that the evidence  [*66]  that might have been discovered would have been helpful -- only that a proper judgment could not be made without the investigation when the failure to investigate is thought to be sufficiently serious. Mason v. Mitchell, 320 F.3d at 619-27; Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000); Skaggs v. Parker, 235 F.3d at 269-71; Mapes v. Coyle, 171 F.3d 408, 425-29 (6th Cir.), cert. denied, 528 U.S. 946, 120 S. Ct. 369, 145 L. Ed. 2d 284 (1999). But see Coleman v. Mitchell, 268 F.3d 417, 444-45 (6th Cir.), cert. denied, 534 U.S. 977, 122 S. Ct. 405, 151 L. Ed. 2d 307 (2001). But see also Tyler v. Mitchell, 416 F.3d 500 (6th Cir. 2005); Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000). While no adequate empirical studies seem to have been made, it is just as easy to speculate that the type of "troubled childhood" evidence whose absence is usually faulted would be as damaging as it would be helpful. See generally, Ursula Benetele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation requires Death; and Mitigation is No Excuse  [*67]  , 66 Brooklyn L. Rev. 1011 (2001); James M. Doyle, Representation and Capital Punishment: The Lawyers' Art: "Representation" in Capital Cases, 8 Yale J.L. & Human. 417 (1996); Paul Litton, The "Abuse Excuse" in Capital Sentencing Trials, 42 Am. Crim. L. Rev. 1027 (2005); Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz. L. Rev. 143 (1999); Scott Sundby, The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998); Scott Sundby, The Jury as Critic: An Empirical Look at how Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109 (1997).

In fact, the usual speculation as to mitigating factors goes in two exactly opposite directions. Some would believe that a person's life should be spared if he had a troubled and violent childhood, which made it difficult to grow up to be the kind of citizen who does not murder people in the especially culpable ways necessary for a death sentence. On the other hand, it is exactly such evidence that might lead a jury  [*68]  to believe that the convict's life is particularly unworthy, is unlikely ever to improve, and thus he is unworthy of mercy. See Moore v. Parker, 425 F.3d 250, 254 (6th Cir. 2005). The strength of the opposite line of reasoning is shown by the fact that frequently, when such evidence is available, defense attorneys attempt to show that a person instead possesses considerable redeeming qualities, acquired talents, and turns of mind from a supportive and nurtured youth that makes his life more valuable and particularly worthy to be spared. I hold no brief for either side of this argument, either as a prospective juror myself, or as a prediction as to what jurors will in fact do. I lay this out only to indicate that it is wholly speculative to conclude that the presence of the type of evidence, whose absence ostensibly harms the petitioner, would in fact have spared him had it been presented to the jury.

And thus, we return to the "moral hazard" presented by our current jurisprudence. A somewhat prescient attorney, years ago, in the cases we are now seeing, might implicitly have reasoned (and any sensible attorney today, reading our cases, would have to be blind not to  [*69]  reason) as follows:

If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the "troubled childhood" variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.

While I do not assert that the counsel in this or any other case made such a judgment, either consciously or unconsciously, I do note that our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorne

The fact that the Judge Boggs's sensibilities have been offended by a delay in the State of Ohio's rush to execution in order to ensure compliance with constitutional mandates is, I believe, less indicative of the existence a vast, diabolical, defense-bar conspiracy to derail our criminal justice system than it is consistent with  [*72]  the persistent problems plaguing the administration of capital punishment. If we are to continue to sanction imposition of the death penalty, we must be willing to guarantee a level of acceptable legal representation for capital defendants that will protect the interests of the accused, as the constitution demands. My experience over more than 30 years on the state and federal appellate benches leads me to the inescapable conclusion, contrary to Judge Boggs's intimations, not that capital defense attorneys are engaged in a demented, premeditated game of "gotcha" with the courts, but rather that those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both. If Judge Boggs truly wishes to bring finality to murder prosecutions in this circuit, I would invite him to spend less time denigrating the dedicated, but often overwhelmed, attorneys who have accepted the responsibility of representation in these very difficult cases, and more time working for improvement of the system.