706
Stevens, J., dissenting
a possible prosecution witness, but Dice failed to interview her before the trial. Id., at 138.3 In guilt phase rebuttal, the State also introduced its own medical experts to challenge the defense experts' testimony concerning Cone's alleged insanity. Although the State's experts questioned Cone's claim of Vietnam Veterans Syndrome, their testimony focused on Cone's failure to satisfy the insanity standard. See Tr. 1957, 1983. It took less than two hours for the jury to return a guilty verdict on all counts.
Dice's stated attitude toward the penalty phase must frame our consideration of the constitutional standard applicable to this case. Once his "Vietnam Veterans Syndrome" defense was rejected in the guilt phase, it appears that Dice approached the penalty phase with a sense of hopelessness because his "basic tactic was to try to convince the jury that Gary Cone was insane at the time of the commission of these acts, and the jury rejected that." State Postconviction Tr. 109. Dice perceived that the guilt phase evidence concerning Cone's mental health "made absolutely no difference to the jury," id., at 159, and that the jurors "weren't buying any of it," id., at 156, even though that evidence had been introduced to the jury through the lens of the insanity defense, not as mitigation for the death penalty.4 Dice's co-3 With respect to this failure, Dice explained: "So, we could have interviewed her, but we didn't. I don't know, maybe she was devastating and maybe she wasn't, but let's say that we had interviewed her, you know, what would it have changed? If she'd come up here and she'd testified, she would have testified the same way I assume." State Postconviction Tr. 140.
4 It is true that the jury was instructed to consider mitigation from the guilt phase, and also true that Dice's brief penalty phase opening referenced the mental health evidence from the guilt phase, ante, at 691, but the jury's whole view of that testimony was influenced by its relation to the debunked insanity defense. Although the State's experts may have been successful in undermining Cone's claim to insanity, they did not necessarily undermine the potential mitigating effect of Cone's mental health evidence.
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