704
Stevens, J., dissenting
Florida and Hawaii, suggests that Cone supported himself and his drug habit by criminal activity.
The Court has fairly described the facts of respondent's crime. Ante, at 689-690. However, in order to understand both why Cronic applies in the present case, and how counsel completely failed respondent at the penalty phase, I describe the events at trial in more detail. In his opening statement at the guilt phase of the trial, respondent's counsel, John Dice, admitted to the jury that Cone had committed the crimes for which he was charged, but explained that he was not guilty by reason of insanity—a condition brought on by excessive drug use that resulted from "Vietnam Veterans Syndrome." See, e. g., Tr. 956-957.1 Dice explained to the jury that Cone's time in Vietnam had transformed him, leading to his insanity, and Dice promised several witnesses in aid of this insanity defense, including Cone's sister Susan, Cone's mother, and his two aunts, all of whom would "testify about the Gary Cone that they knew," id., at 953, that is, the
1 Dice claims credit for developing this defense, but these claims are unsubstantiated and appear exaggerated from Dice's testimony. See State Postconviction Tr. 92. Nonetheless, such a defense was in its early stages at the time of respondent's 1982 trial, and has become more widely asserted. See generally Levin, Defense of the Vietnam Veteran with Post-Traumatic Stress Disorder, 46 Am. Jur. Trials 441 (1993 and Supp. 2001). Furthermore, as of 1980, the American Psychiatric Association began formally to recognize posttraumatic stress disorder (PTSD), which can derive from disturbing war experiences. See American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders 463-468 (rev. 4th ed. 2000).
The PTSD from which respondent allegedly suffered would sensibly have been used by Dice as mitigation in the penalty phase. See Levin, 46 Am. Jur. Trials § 37. However, its viability as the guilt phase defense in this case was unlikely at best, because insanity in this context applies when "[t]he veteran who believes he is again in combat . . . attacks one whom he believes to be an enemy soldier." Davidson, Note, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 Wm. & Mary L. Rev. 415, 424 (1988). Cone was not in combat and his crime did not fit this description.
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