Cite as: 535 U. S. 685 (2002)
Stevens, J., dissenting
counsel echoed the sentiment that death was a foregone conclusion: "I don't recall too much on any discussion, really, about the penalty stage, mainly because my own feeling about the case law as it was then, and I guess as it still is, is that when a jury is [Witherspooned] in,5 it's a fixed jury. They're going to find a death penalty. . . . It was almost a hopeless feeling that the way the problem was going to be solved was through the Court of Appeals, not through any jury verdict." Id., at 39. Indeed, Dice expressed this hopelessness even before the trial began; he testified that he told Cone's mother "the first day I met her, that if [the prosecutor] does not elect to offer life in this case, your boy is going to the chair and there's not going to be a darn thing . . . I'm going to be able to do to stop it except to maybe screw up the prosecution." Id., at 108. Moreover, Dice's testimony in state postconviction reveals his "radical" view of the penalty phase. Id., at 122. When asked if the purpose of the penalty phase was to "individualize the defendant," Dice replied "[t]hat's your view of it as a lawyer, not mine," id., at 124, and when asked why a capital proceeding is bifurcated, Dice replied "God only knows," id., at 125.6 His co-counsel's postconviction testimony confirms Dice's misguided views. Discussing the penalty phase, co-counsel stated: "I don't believe I understood the separate nature of it. I don't believe that I understood the necessity . . . of perhaps producing
5 Her comments refer to Witherspoon v. Illinois, 391 U. S. 510, 518 (1968) (finding no general constitutional bar to a State's "exclusion of jurors opposed to capital punishment," i. e., "death-qualification" of a jury, because of no proof that such a bar "results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction").
6 Dice's comments concerning the penalty phase are not only erroneous in content, but inappropriate in tone. For example, when asked about capital sentencing, he rejected the notion that the Constitution requires an individualized death penalty decision: "The reason's political as far as I'm concerned. The method is insanity . . . . I don't care whether it's legal or not. When you kill people who kill people to show that killing people is wrong, it's insane." State Postconviction Tr. 124.
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