708
Stevens, J., dissenting
more evidence in mitigating circumstances, in that phase also." Id., at 49.
The parties agree that Dice did four things in the penalty phase. See Brief for Respondent 36. First, he made a brief opening argument in the penalty phase asking for mercy. Second, in this opening, he referenced the evidence concerning Vietnam Veterans Syndrome that had been presented in the guilt phase. Third, he brought out on cross-examination of the State's witness who presented court records of respondent's prior convictions that Cone had been awarded the Bronze Star in Vietnam, though he did not explain the significance of that decoration to the jury because he made no closing remarks after the cross-examination. And, fourth, outside of the jury's presence, he successfully objected to the State's introduction of two photographs of the murder victims. Aside from doing these things, however, Dice did nothing before or during the penalty phase—he did not interview witnesses aside from those relevant to the guilt phase; he did not present testimony relevant to mitigation from the witnesses who were available; and he made no plea for Cone's life or closing remarks after the State's case.
Dice conceded that he did not interview various people from Cone's past, such as his high school teachers and classmates, who could have testified that Cone was a good person who did not engage in criminal behavior pre-Vietnam. Dice agreed that such witnesses would likely have been available if Dice had, in his words, "been stupid enough to put them on." State Postconviction Tr. 104. Apparently, Dice did not interview these individuals in preparation for the penalty phase, because he assumed that the State's cross-examination of those witnesses would emphasize the seriousness of Cone's post-Vietnam criminal behavior. Id., at 104- 105, 137. Dice's reasoning is doubtful to say the least because, regardless of the state of Tennessee law, see ante, at 696, n. 3, these post-Vietnam crimes were already known to the jury through the State's penalty phase evidence of
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