362
Scalia, J., concurring in judgment
failure to introduce mitigating evidence—character witnesses and the like—during the sentencing phase. See Petition for Writ of Habeas Corpus (Dec. 3, 1980), ¶ 49, p. 12, Petitioner's Post-Hearing Brief (Dec. 2, 1982), pp. 17-30, Magistrate's Report and Recommendation (Aug. 26, 1983), pp. 8-18, and Objections to the Magistrate's Report and Recommendation (Sept. 12, 1983), pp. 2-12, in No. C80-247R (ND Ga.); Dobbs v. Kemp, 790 F. 2d 1499, 1513 (CA11 1986), modified in part, 809 F. 2d 750 (CA11 1987). In addressing that contention, neither the District Court nor the Court of Appeals relied on the content of the closing argument, for the obvious reason that it does not constitute evidence. The District Court described the closing argument in setting forth the events of the sentencing phase, but did not mention it in its legal analysis, ruling instead that counsel had made a "reasonably substantial investigation" in searching for witnesses to testify on petitioner's behalf and a "reasonable tactical decision not to present evidence based on the information before him." No. C80-247R (ND Ga., Jan. 13, 1984), p. 25. In affirming the District Court, the Court of Appeals elaborated on what it thought was the crucial "tactical decision" of the trial counsel (which was not a decision to omit evidence of mitigation in favor of a stunning closing argument): "Knowing of [petitioner's] poor reputation in the community, [counsel] testified in the district court that he did not want to put on any 'positive' character testimony for fear that it would not be persuasive and would prompt damaging counter evidence from the prosecution." Dobbs v. Kemp, 790 F. 2d, at 1513-1514. The closing argument was mentioned only in a footnote, which stated: "Although [counsel] did not present any mitigating evidence, his testimony in the district court reveals that he did make a closing argument in mitigation." Id., at 1514, n. 15.
I think it unimaginable that, if this transcript had been available in 1986—showing that only Justice Brennan's moving Furman argument, and not also an "impulsiveness" ar-
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