jury would provide con-
text to the psychological or other mitigating evidence offered
at the penalty phase.

   Even more puzzling is Jordan’s failure to contact attorney
Roth for assistance in overcoming this problem, despite
knowing that Daniels trusted and confided in Roth. Roth later
testified that he had refrained from speaking with Jordan after
Roth was designated a prosecution witness to avoid learning
any new information from Jordan that he might be forced to
reveal to the prosecution. However, Roth’s concern should
                        DANIELS v. WOODFORD                        14979
not have kept Jordan from seeking information from Roth, as
that would not have necessitated Jordan revealing any
attorney-client privileged information that Roth did not
already know. In addition, Jordan could have sought Roth’s
advice or assistance in securing Daniels’s trust.

   [7] Jordan, however, took no steps to obtain Roth’s assis-
tance in communicating with Daniels.26 Instead, it appears that
either Jordan or Small told Roth to “keep [his] hands off and
let’s see if we can handle this to the best of our ability.”
Moreover, Jordan did not attempt to use Roth during the pen-
alty phase even though Roth was no longer a prosecution wit-
ness and the trial court had expressly suggested that Jordan
contact Roth. As the district court concluded, “[i]n light of
[Jordan’s] admitted knowledge that Daniels’[s] testimony was
critical to his defense and his ongoing inability to communi-
cate with Daniels, his failure to use Roth in any way to over-
come the communication failure, particularly by the time of
the penalty phase when any threat from Roth’s designation as
a witness had been lifted, constituted deficient performance.”

       b.   Failure to Investigate Mental Health Defenses or
            Mitigation Evidence

   More troubling is counsel’s failure to conduct a thorough
investigation into Daniels’s mental illness and possible brain
damage. Even though Daniels refused to speak to h