712
Stevens, J., dissenting
phase with Cone, but rather discussed with him the possibility of taking the stand on only one occasion—during the guilt phase of the trial.9
Dice's failure to recall the medical experts who testified in the guilt phase is a closer question, and may have been justified by his belief that they could not add anything that had not already been presented to the jury.10 Nevertheless, had they been called, Dice could have made the point, likely lost on the jury as a result of Dice's "strategy," that the experts' appraisal of Cone had mitigating significance, even if it did not establish his insanity. For there is a vast difference between insanity—which the defense utterly failed to prove— and the possible mitigating effect of drug addiction incurred as a result of honorable service in the military. By not emphasizing this distinction, Dice made it far less likely that the jury would treat either the trauma resulting from Cone's tour of duty in Vietnam 11 or other traumatic events in his
9 This conclusion follows from Cone's testimony that he was only consulted once, in a three-person conference, about testifying, before he got on the stand to state that he would not be testifying. State Postconviction Tr. 203-204. Cone initially recalled that this meeting occurred in the penalty stage, though he then expressed uncertainty on this point; however, he remained certain that there had been only one meeting. See ibid. The conference must have concerned the guilt phase, because it was during the guilt phase that Cone waived his right to testify. See Tr. 1865-1866. Furthermore, Dice's co-counsel does not remember a discussion concerning Cone's possible testimony at the penalty phase, State Postconviction Tr. 35, 48; Dice himself testified repeatedly that Cone does not lie, id., at 117, 120, 139, 141; and Dice himself was unable to state for certain that Cone was consulted about penalty phase testimony, id., at 118.
10 Indeed, had counsel's performance not been so completely deficient, this would be the sort of strategic choice about which counsel would be owed deference under Strickland v. Washington, 466 U. S. 668, 689 (1984). In this case, however, because of Dice's total failure in the penalty phase, it is difficult to credit even arguably reasonable choices as the result of "reasonable professional judgment," id., at 690. See infra, at 717-718.
11 "Although not a combat soldier in Vietnam, Gary described disturbing and traumatic experiences while there. For example, the stench from the corpses, and the way in which they were stored in refrigerators alongside
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