710
Stevens, J., dissenting
Although the guilt phase evidence included information about Cone's post-Vietnam behavior, it told the jury little about Cone's earlier life.8 During the guilt phase, Dice had a difficult enough time convincing the court to allow him to present evidence of respondent's post-Vietnam behavior and drug addiction as an insanity defense, that he did not seriously attempt to introduce evidence of respondent's childhood. However, such evidence would have been permissible mitigation in the penalty phase. This evidence would have revealed Cone to be "a quiet, studious child," with "absolutely no suggestion of any behavioral disturbance, even in adolescence." App. 93. Indeed, his mother could have described him as a "perfect" child, ibid., and she "absolutely" wanted to testify at the penalty hearing to make a plea for Cone's life, but Dice "wouldn't put her on even if she'd wanted to," because he "did not feel that she did well on the stand," and because of "the cross-examination skills of the District Attorney involved." State Postconviction Tr. 97- 98, 193. Dice's claim that she had not made a good witness at the guilt phase, see ante, at 700, is contradicted by the transcript of her straightforward trial testimony, Tr. 1631- 1656, and his desire not to subject her to cross-examination is surely an insufficient reason, absent more, to prevent her from asking the jury to spare her son's life.
Dice also did not call as witnesses in mitigation either of Cone's sisters or his aunt, all of whom were promised in Dice's opening statement. Dice's statement that Cone's sister Sue "did not want to testify," ante, at 700, is contradicted by his opening statement. And his fear that she might have been questioned "about the fact that [Cone] called her from the [victims'] house just after the killings," ibid., is unfounded: Evidence of this call was already in the record, and further reference to the call could do no conceivable additional harm to Cone's case. Indeed, Dice's justification for
8 Cf. Levin, 46 Am. Jur. Trials § 37 ("Counsel needs to clearly draw the contrast in the client from before and after Vietnam").
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