FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ROGERS,

Petitioner-Appellee,

v.

JAMES DZURENDA; ADAM PAUL 

LAXALT; WILLIAM GITTERE, 

Warden,

Respondents-Appellants.

No. 19-17158

D.C. No.

3:02-cv-00342-

GMN-WGC

OPINION

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 parkalike 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 selfdefense. 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-III2 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.

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

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 inhouse 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 courtappointed 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?”

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

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 boardcertified 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 

13 At trial, defense counsel called Drs. Rich and Richnak to testify 

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. RodriguezRamirez, 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 crossexamination), 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 notconsistent.
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 testimony is not prejudicial. 

Schaflander, 743 F.2d at 718.26

26 The majority casts Dr. Molde’s potential testimony as not 

cumulative by stating that “[i]f Rogers had even one additional medical 

expert testify about the central point of his defense—whether he was 
ROGERS V. DZURENDA 87

Second, the majority contends that Dr. Molde’s status as 

a court-appointed medical expert,27 as well as how long he 

spent evaluating Rogers,28 made his credibility more 

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.” Majority Op. at 43 n.12. 

But this potential rebuttal does not pertain to cumulativeness. 

Schaflander does not help the majority’s argument. See 743 F.2d at 718. 

If twenty-eight more witnesses would have been cumulative to the 

fifteen defense witnesses—almost tripling the number of witnesses for 

the defense—then doubling the number of witnesses who would testify 

that Rogers was insane at the time of the offense, from one to two, could 

also be cumulative. The determination would turn on how similar the 

testimony would be. See Eslaminia v. White, 136 F.3d 1234, 1239 (9th 

Cir. 1998) (“To be truly considered cumulative, there must be an 

extremely close relationship between the extrinsic evidence and the 

evidence actually admitted.”). Because Dr. Molde himself testified that 

he did not “know that [he] would have covered anything that [Dr. Pauly] 

didn’t,” his testimony would have been duplicative to the testimony the 

jury heard from Dr. Pauly.

27 The trial court had also appointed Drs. Rich and Richnak to assess 

Rogers’s competency to stand trial. Defense counsel thus called two 

witnesses who were not subject to a “hired gun” attack. And the defense 

emphasized in its closing argument that Dr. Pauly was “paid by the State 

of Nevada” and argued that he and the prosecution’s investigator “are all 

professionals” who would not “lie merely because [they are] getting paid 

by one side or the other.” This factor does not contribute to prejudice.

28 Dr. Molde met with Rogers five times, first interviewing him in 

January 1981, then twice in April 1981, then in June and July 1981. 

Although this exceeds Dr. Pauly’s number of interactions—twice, for 

three and a half hours total—it pales in comparison to Dr. Richnak’s 

three formal evaluations and “twenty or thirty” interactions total. In any 

event, Dr. Gutride still met with Rogers far more than any of the other 

experts, having “spoke[n] with him briefly every day” during his months 

in Lake’s Crossing. Three more interviews would not have made 

Dr. Molde’s evaluation of Rogers’s sanity so much more credible than 

Dr. Pauly’s that his not testifying was prejudicial for that reason.
88 ROGERS V. DZURENDA

immune to the prosecution’s cross-examination than 

Dr. Pauly’s. First, a fair reading of the record shows that 

Dr. Pauly performed very, very well under crossexamination, indeed, that he did a masterful job. So the bar 

would have been very high for Dr. Molde. And second, the 

majority does not even consider how Dr. Molde’s crossexamination would have diminished his credibility. As the 

State points out in its briefing on appeal, because Dr. Molde 

“disagree[d]” with the DSM-III—the leading medical text—

about the diagnostic requirements for paranoid 

schizophrenia, the prosecution had a different potential line 

of attack for cross-examining Dr. Molde. We have no way 

of knowing how the jury would have perceived Dr. Molde’s 

testimony had he departed from the DSM-III. Alternatively, 

the jury might have thought less of the testimony from the 

other expert witnesses for the defense, which relied on the 

DSM-III, jeopardizing Rogers’s case. Moreover, I don’t see 

how Dr. Molde’s credibility would have sufficiently 

enhanced the NGRI defense such that it would have 

persuaded the jury that Rogers was legally insane. 

Dr. Molde, by his own admission, would have given entirely 

cumulative testimony, repeating Dr. Pauly’s “masterful 

job.” Cf. Clabourne, 64 F.3d at 1382.

Finally, the majority asserts that Dr. Molde would have 

more effectively undercut Dr. Gutride’s testimony. In this 

regard, I disagree that defense’s cross-examination of 

Dr. Gutride was constitutionally deficient (especially when 

considering the other evidence that undercut Dr. Gutride), 

which I address further in the following section. In any 

event, anything Dr. Molde might have told the jury would 

have been cumulative to Dr. Pauly’s testimony. The 

addition of Dr. Molde’s testimony would not have been 

reasonably likely to have affected the outcome of the trial.
ROGERS V. DZURENDA 89

E. Dr. Gutride

The majority holds that “[t]rial counsel performed 

deficiently by not preparing to rebut the State’s mental 

health expert, Dr. Martin Gutride.” Majority Op. at 29. 

First, the majority found it deficient that trial counsel did not 

adequately prepare defense experts to rebut Dr. Gutride’s 

testimony. Id. at 30. The majority also found it deficient 

that “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.” Id. at 30. In concluding that these 

deficiencies were prejudicial, the majority points out that 

trial counsel could

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.

Id. at 45. In sum, the majority found it deficient that much 

of Dr. Gutride’s opinion went unchallenged, which was 

ultimately prejudicial to Rogers. See id. at 42–46.

I see things differently. The cross-examination of 

Dr. Gutride was not constitutionally deficient. Cf. Dows v. 

Wood, 211 F.3d 480, 487 (9th Cir. 2000) (“[C]ounsel’s 

representation must be only objectively reasonable, not 
90 ROGERS V. DZURENDA

flawless or to the highest degree of skill”); id. (holding that 

counsel’s cross-examination of a witness was not 

ineffective, even if he could have “conducted a more 

thorough and vigorous examination”).

Begin with the presentation of the defense’s expert 

witnesses. All three of the defense’s experts discussed 

Dr. Gutride before Dr. Gutride testified. Dr. Richnak 

rejected Dr. Gutride’s finding that Rogers was malingering 

and noted on cross that other staff in Lake’s Crossing also 

disagreed with Dr. Gutride. He walked through the factors 

for malingering under DSM-III and explained why they 

showed Rogers was not malingering. Dr. Richnak testified 

that Dr. Gutride’s impression that Rogers had an antisocial 

personality disorder was “at variance to [Dr. Richnak’s] 

diagnosis,” and that he disagreed with Dr. Gutride’s report. 

Dr. Rich, noting that Dr. Gutride was a psychologist and not 

a psychiatrist (i.e., not a medical doctor, unlike all the 

medical doctors who disagreed with Dr. Gutride), disagreed 

with Dr. Gutride’s findings that Rogers had antisocial 

personality disorder and that Rogers was malingering. 

Despite these lodged disagreements, which the jury 

weighed, Rogers argues, and the majority agrees, that 

Dr. Gutride’s daily notes documenting Rogers’s stay at 

Lake’s Crossing would have enhanced Rogers’s assertion 

that he suffered from paranoid schizophrenia. Majority Op. 

at 44–45. In my view, this evidence would have been merely 

cumulative, particularly because Dr. Pauly gave a 

“masterful” presentation of the defense’s position that 

Rogers suffered from schizophrenia, to which I turn next.

Dr. Pauly’s testimony is even more significant to the 

majority because he opined on Rogers’s insanity at the time 

of the offense. The majority believes that defense counsel 

should have discussed Dr. Gutride’s reports with Dr. Pauly 
ROGERS V. DZURENDA 91

in preparation for trial, so that he was better able 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.” Id. at 30. But Dr. Pauly 

didn’t need any further preparation. He had reviewed “the 

entire record,” including Dr. Gutride’s report, and, as quoted 

above, acknowledged that Dr. Gutride was the only 

“divergent opinion” among eleven mental health 

professionals. The jury heard him testify that Dr. Gutride 

“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 [Rogers] has an 

unusual personality that he diagnosed as a schizo type but 

which he diagnosed as a personality disorder.” Dr. Pauly 

noted that “[e]ven though [Dr. Gutride] had not rendered a 

[schizophrenia] diagnosis,” Dr. Gutride, like all of the other 

medical professionals who evaluated Rogers, “described 

him as having poor affect or bland affect or flat affect or very 

restricted affect,” which “is one of the criteria in the DSM 

3” for schizophrenia. Like Drs. Rich and Richnak, Dr. Pauly 

preemptively rebutted Dr. Gutride’s testimony to a sufficient 

extent.

The jury also weighed key points from Dr. Gutride’s 

direct examination against the other expert testimony and 

considered them alongside his cross-examination. First, just 

like Drs. Rich and Richnak, Dr. Gutride had no opinion on 

whether Rogers could distinguish right from wrong at the 

time of the crimes, which may have compromised the 

effectiveness of his testimony for the prosecution. 

Dr. Gutride observed, tested, and interviewed Rogers during 

his time at Lake’s Crossing. He testified that Rogers’s 

“overall profile [was] similar to those of people who have 

difficulties in impulse control, who tend to be somewhat 

angry, who often have a history of what is known as 
92 ROGERS V. DZURENDA

antisocial behavior in actions and who do not always deal 

very well with their emotions.” He also testified that Rogers 

seemed to be malingering, or “faking bad,” given the lack of 

“consistency to [Rogers’s] behavior.” He recounted 

behavior much like what Dr. Richnak described, see supra 

n.21, testifying that Rogers “would stand in the center of the 

room and the sun would be streaming in the window and he 

would go through a sort of ritual kind of thing”; to 

Dr. Gutride, though, this “didn’t have a quality of a real 

psychotic kind of presentation,” and “he always seemed to 

know what was going on around him.” Most notably, “right 

after [Rogers’s] first sanity hearing . . . , when [they] 

returned to Lake[’]s Crossing that afternoon,” Rogers told 

Dr. Gutride that “he was so quiet and behaving strangely” 

because “he [was] a good actor.”29

Finally, the cross-examination of Dr. Gutride—calling

his findings into question—was solid. Defense counsel 

established that Dr. Gutride had written in one of his own 

reports that Rogers exhibited symptoms consistent with 

paranoid schizophrenia: that he had “a paranoid quality to 

his ideations but he carefully conceals the source of his 

distrust.” This is an important point when considered against 

the backdrop of the testimony provided by Dr. Pauly. But 

it’s unclear that identifying that schizophrenia and ASPD 

were mutually exclusive would have gotten the defense very 

far. Dr. Gutride could have simply agreed with that premise 

of the question and confirmed his ASPD diagnosis on the 

stand more robustly. He also could have doubled down on 

his damaging testimony that he “felt there might have been 

29 Again, all the preparation in the world would not have changed 

the facts—Rogers was an actor, Rogers admitted to Dr. Gutride that 

some of his “strange” behavior was acting, and the prosecutor effectively 

argued that Rogers was acting and not legally insane.
ROGERS V. DZURENDA 93

malingering instead of actual schizophrenia.” In this regard, 

the majority conflates questions with answers. Asking a 

question on cross of an expert doesn’t mean you get a helpful 

answer. We need look no further than the prosecutor’s cross 

of Dr. Pauly, discussed above. The defense had established 

that Dr. Gutride’s opinion was an outlier, and that 

Dr. Gutride’s actual diagnosis was ambiguous. Had counsel 

gone after Dr. Gutride more and ended up allowing him to 

make his points better and more vigorously (as likely would 

have happened), the cross-examination would have been 

“ineffective”—likely not constitutionally ineffective, but 

practically ineffective, and ineffective in a way that takes 

place every day, in courtrooms across the country. Good 

trial lawyers know that trying to make the perfect the enemy 

of the good, usually leads to neither perfect nor good.30

As to malingering, defense counsel undermined 

Dr. Gutride’s testimony by having him acknowledge that the 

DSM-III was the leading diagnostic authority and

30 “It is . . . necessary for counsel to be certain, when using 

authoritative books to confront an expert witness, either that the expert 

has stated an opinion in conflict with the very latest authoritative 

thinking of his profession, or that he has stated a position on one side of 

a recognized conflict in thinking in the profession. Lacking either of 

these premises, an attack of this nature can have grossly harmful results 

for a cross-examiner.” William D. Farber, Contradiction of Expert 

Witness Through Use of Authoritative Treatise, 31 Am. Jur. Proof of 

Facts 2d 443 § 12 (Nov. 2021 Update). Moreover, if a witness’s 

testimony “on cross-examination has developed a conflict with his 

testimony on direct examination or with statements in an authoritative 

treatise, it is generally unwise to ask the witness to state the inescapable 

conclusion, for almost invariably he will use it as an excuse for making 

an explanation.” Id. § 19. Even if counsel here had (unwisely) pressed 

Dr. Gutride on the conflict between his statements about ASPD and the 

DSM-III, Dr. Gutride could have provided a convincing explanation for 

the jury.
94 ROGERS V. DZURENDA

establishing that Dr. Gutride could not distinguish between 

“factitious disorder,” a DSM-III diagnosis, and malingering. 

This implied to the jury that he may not have been familiar 

or knowledgeable enough on the relevant psychiatric 

disorders. Counsel also elicited testimony that Rogers’s 

behavior in consistently denying medical illness to his 

psychiatrists and claiming to be ready for trial, contradicted 

malingering. Dr. Gutride’s responses to this line of 

questioning were particularly poor; counsel even managed 

to get him to concede that Rogers’s inconsistent behavior 

could signal a schizophrenic disorder. When counsel 

pressed on this in a hypothetical, the court stated, “This 

witness hasn’t given an opinion on his state of mind at the 

time of the crimes . . . . He has testified that there was some 

paranoid characteristics, apparently.” On crossexamination, Dr. Gutride stated explicitly: “My diagnosis 

was not malingering but was an antisocial personality and he 

was suffering this psychotic behavior.” Dr. Gutride thus 

could not commit to a malingering diagnosis, presenting 

internally inconsistent positions to the jury.

Despite this rigorous cross-examination and the strength 

of Dr. Pauly’s “masterful” testimony, the jury was not 

convinced that Rogers was insane at the time of the crimes 

(apparently not close to convinced, given the short time they 

deliberated in a capital case). While the majority argues that 

it would have been better for counsel to have elicited 

testimony from one of Rogers’s experts identifying the 

inconsistencies in Dr. Gutride’s reports, in my view, 

(1) counsel appropriately identified those inconsistencies on 

cross-examination, and (2) Drs. Pauly, Rich, and Richnak 

had testified that Dr. Gutride’s opinion differed from theirs 

and articulated why they thought they were correct and 

Dr. Gutride was incorrect. Thus, counsel’s crossexamination of Dr. Gutride was not constitutionally 
ROGERS V. DZURENDA 95

deficient—or deficient at all—and did not prejudice the 

defense’s case.

F. Prosecution’s Case

The prosecution’s arguments to preserve the 

presumption of legal sanity would have withstood an NGRI 

defense armed with the majority’s suggested improvements. 

A jury verdict of NGRI would not have been reasonably 

likely even with better defense counsel. And although the 

case featured various experts testifying about Rogers’s 

mental health, the prosecution hardly acknowledged the 

expert testimony as it offered its compelling narrative during 

closing arguments. The prosecution focused on the 

sequence of events before, during, and after the murders, 

explaining why they demonstrated Rogers’s legal sanity. 

That is, the prosecution explained why Rogers’s actions 

evinced his ability to distinguish right from wrong and his 

knowledge of the nature and quality of his actions—

regardless of any official diagnoses or odd behaviors.

This is the key point as to prejudice. The experts 

acknowledged, as of course they had to, that a person with 

schizophrenia is not categorically unable to tell right from 

wrong or unable to understand the nature and quality of his 

acts.31 The key missing evidence, as opposed to anything 

missing from the defense presentation, were facts from 

31 For example, on cross-examination, Dr. Pauly agreed with the 

prosecutor that “approximately one percent of the population is 

diagnosed as having schizophrenia.” When asked whether it could be 

assumed that someone diagnosed with schizophrenia does not know right 

from wrong, Dr. Pauly replied, “No. Those two do not follow. In other 

words, not every schizophrenic doesn’t know the difference between 

right and wrong at any given point in time.”
96 ROGERS V. DZURENDA

which a jury could conclude that Rogers didn’t know that he 

was killing the Strodes or that killing them was wrong.32

In a case in which the killer has schizophrenia, there 

could be facts that show him to be legally insane. For 

example, a schizophrenic person could hear voices that 

command specific actions. Such a commanded individual 

might not know that following the commands is wrong. But 

here, no evidence suggested that Rogers ever heard 

commanding voices at any point in his life. Similarly, a 

schizophrenic individual might hallucinate in such a way as 

to be unaware that he is killing other humans. But again, no 

evidence suggested that Rogers had ever suffered from 

hallucinations, much less hallucinations of that strength.33 

Such a hallucination is unlikely to arise for the first time 

during the killings. And, of course, there can be evidence 

that the way a crime is committed shows that the killer didn’t 

32 The majority neglects to address the absence of any facts

regarding the murders and how they were committed that support that 

Rogers was insane when he killed the Strodes. Instead, in response to 

my points about the absence of such facts, the majority states that 

“Drs. Pauly and Molde directly opined that Rogers was insane at the time 

of the crime.” Majority Op. at 36 n.9. This highlights my point—there 

were no such facts.

33 On cross-examination, Dr. Pauly acknowledged that his “was the 

only report in which auditory hallucinations were indicated by the 

defendant,” and only during his second examination—near the start of 

trial. Dr. Pauly found Rogers “to be a lot more open in contrast to the 

first examination that was perhaps seven weeks earlier.” But Dr. Pauly 

testified that “[n]one of the others had described auditory 

hallucinations.” Dr. Richnak offered waffling testimony, however, 

stating that he witnessed “some indication that [Rogers] was possibly 

having auditory hallucinations” because one time “he turned his head 

suddenly as if responding to a voice.” But “that was the only indication,” 

and “in direct questioning [Rogers] denied having auditory 

hallucinations or delusions.”
ROGERS V. DZURENDA 97

know he was killing or perhaps didn’t know it was wrong. 

But the record here contains no such evidence. Nothing in 

Rogers’s habeas case or the majority opinion explains how, 

based on the facts, a better defense presentation would have 

moved the needle on these crucial determinants of prejudice.

The prosecution offered an overwhelming factual case 

for legal sanity. Because insanity is an affirmative defense, 

Rogers was presumptively sane from the start. And the 

prosecution portrayed Rogers, an aspiring performer 

attending two different acting schools in Hollywood, as a 

man with a terrible temper.34 His roommate testified that 

“once in a while” Rogers “got terribly frustrated in his career 

or mad at” him “and picked up an ashtray or dish” and threw 

“it like any human being would when you’re trying to do 

your best to make a career and it just doesn’t happen 

overnight.” To that end, Rogers had broken a shower door 

and television set in their house. Rogers’s roommate also 

testified that Rogers’s behaviors and series of phone calls 

before the murders from San Bernardino and Wells, and after 

the murders from Montreal and Florida, were not unusual.

The prosecution traced Rogers’s journey to the site of the 

murders. And it offered the theory that Rogers entered the 

Strodes’ home—which was adorned with indications that 

they had and used guns—while they were gone and prepared 

coffee and beans. Rogers’s fingerprints and a Seven-Up can 

he had obtained while hitchhiking were found in the home. 

At some point, the Strodes returned home, and Rogers 

34 The prosecution pointed out in closing the obvious fact that an 

actor could be acting when exhibiting symptoms of mental illness: 

“[T]hat acting school prepared the defendant for [the] most important 

role he would ever play in his life, the greatest play acting that he would 

ever have an opportunity to carry out.”
98 ROGERS V. DZURENDA

murdered them. Rogers then dragged Meriam’s body to 

those of her parents and covered them. The prosecution 

argued that the movement of one and covering of all three 

bodies revealed consciousness of wrongdoing. Rogers then 

fled the scene, leaving his meal unfinished. As the 

prosecutor argued: “Do you flee from something that you 

have done that is not wrong?”35 Rogers shot at someone as 

he left the area, fearful that someone had discovered his 

crimes. And he tried to and eventually did enter Canada. A 

month later, by confessing to doing “it” in self-defense after 

being arrested, Rogers displayed knowledge of the nature 

and quality of his acts.

Consider the deliberate omission of any mention of the 

individual experts’ testimony, as well. The prosecution’s 

case-in-chief hinged on expert testimony being irrelevant to 

the question of legal sanity—not just the expert testimony 

that the jury heard, but any possible expert testimony. 

During closing arguments, the prosecution hardly mentioned 

the experts who had testified in the trial. As the prosecution 

argued, the defense could “march every psychiatrist in this 

country into this courtroom but it will not tell you . . . what 

happened there at that time.” And in its rebuttal closing 

argument, the prosecution further dismissed the relevance of 

expert testimony. Instead, it pointed out that “the best 

psychiatrist [the defense] could . . . bring in here on their 

35 The court instructed the jury on flight: “The flight of a person 

immediately after the commission of a crime that has been committed or 

after he is accused of a crime, is not sufficient in itself to establish his 

guilt but is a fact which, if proved, may be considered by you in the light 

of all other proved facts in deciding the question of his guilt or innocence. 

Whether or not evidence of flight shows a conscientiousness of guilt and 

the significance to be attached to such a circumstance are matters for 

your determination. Flight is defined as the deliberate attempt to avoid 

apprehension or prosecution.”
ROGERS V. DZURENDA 99

behalf . . . indicated that [Rogers] was extremely 

dangerous.” But regardless of any “labeling of paranoid 

schizophrenia,” legal sanity turned on whether Rogers knew 

“the difference between right and wrong.” As the prosecutor 

told the jury, “[A]ll of this other monkey business has 

nothing to do with this case.” It did not matter if the defense 

“talk[ed] all day about being examined by the psychiatrists 

and psychologists.” The prosecution also highlighted 

Rogers’s acting abilities, noting that he fooled various 

“psychiatrists that they marched in here.”

Against this backdrop, defense counsel of the highest 

quality would have been unlikely to establish legal insanity 

under M’Naghten. The facts and the prosecution’s theory of 

the case dramatically reduced the relevance of any expert 

testimony. No matter the addition of Dr. Molde’s testimony 

and better preparation of the experts who were called to 

testify, the prosecution proved facts that overwhelmingly 

established that Rogers knew right from wrong and 

understood the nature and quality of his acts when he killed 

the Strodes.

* * *

“Surmounting Strickland’s high bar is never an easy 

task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). 

Rogers has not done so here. Even if counsel’s errors 

identified by the majority were constitutionally deficient, 

those errors did not prejudice Rogers’s defense. And the 

sequence of events before, during, and after the murders, 

considered alongside the prosecution’s dismissal of the 

relevance of expert testimony, makes it extremely unlikely 

that any defense counsel would have proven that Rogers was 

legally insane when he committed the killings.
100 ROGERS V. DZURENDA

The majority’s holding works a great wrong. Mark 

Rogers brutally murdered three innocent people more than 

forty-one years ago. The evidence of both his guilt and his 

sanity was overwhelming.36 I join my colleagues in the 

majority in decrying Nevada’s choice of woefully 

inexperienced counsel in a capital case. The State should 

have done better. But forcing Nevada either to conduct a 

new trial forty-one years later or adjudge Rodgers not guilty 

by reason of insanity is not a constitutionally permissible 

remedy for its failings. We are bound by Strickland and its 

progeny, and Rogers does not make out a case entitling him 

to the relief he obtains here. Because the facts and the law 

require that we deny Rogers’s petition for a writ of habeas 

corpus, I respectfully dissent.

36 The majority accuses of me of saying that because the evidence 

of Rogers’s guilt was overwhelming, the evidence of his sanity was 

necessarily overwhelming, thus, missing that “the fact that Rogers killed 

the victims, even if clearly established, does not establish that evidence 

of ‘his sanity was overwhelming.’” Majority Op. at 50 n.15. I don’t, 

however, say that because the State proved that Rogers murdered three 

people, the State necessarily established that Rogers was sane. I say that 

based on the facts, the evidence of both Rogers’s guilt and Rogers’s 

sanity were overwhelming.

The majority also claims I don’t explain why the evidence of sanity 

was overwhelming (while in the same paragraph acknowledging that 

“Rogers killed his victims in calculated and cold-blooded ways and 

persistently attempted to avoid capture, including fleeing to the Canadian 

border”). Majority Op. at 50 n.15. I respectfully disagree and believe 

the facts the State proved (and that I have described) overwhelming 

demonstrate that Rogers was sane when he murdered the Strodes.