Cite as: 535 U. S. 685 (2002)
Stevens, J., dissenting
life 12 as mitigating. And, again, the reason for Dice's failure is that Dice himself failed to appreciate this distinction, for he believed that the "jury had completely rejected" the experts' testimony after losing at the guilt phase. Id., at 156.
In addition to performing no penalty phase investigation and failing to introduce available mitigation, Dice made no closing statement after the State's affirmative case for death. Rather, Dice's "strategy" was to rely on his brief penalty phase opening statement. This opening statement did refer to the evidence of drug addiction and the expert testimony already in the record, though it is unclear to what end, as Dice believed that the jury had "completely rejected" this testimony, ibid. Dice's statement also explained that respondent's drug abuse began under the "stress and strain of combat service," Tr. 2118, even though the jurors knew that Cone had not been in combat. Otherwise, Dice failed to describe the substantial mitigating evidence of which he was aware: Cone's Bronze Star; his good character before entering the military; the deaths in his family; the rape and murder of his fiancée; and his loving relationships with his mother, his sisters, and his aunt. At best, Dice's opening statement and plea for Cone's life was perfunctory; indeed, it occupies only 41/2 of the total 2,158 trial transcript pages.
Dice's decision not to make a closing argument was most strongly motivated by his fear that his adversary would make a persuasive argument depicting Cone as a heartless
food; witnessing death; being required, even on occasion to fire a weapon; the long hours of guard duty; and the escalating drug abuse, often ostensibly sanctioned by superior officers." App. 96.
12 According to a defense psychologist's report about Cone, the major traumas in his life have been: "witnessing his brother's body being removed from the lake"; "[h]is grandmother's death, just after high school graduation. Gary lived with her, and clearly viewed her as a safe haven from his father"; "[d]uty in Vietnam, 1968-1969. Although not a combat soldier, experiences were beyond the realm of normal experiences for a 20-year-old"; and the "[r]ape and murder of his fiancée in December 1972." Id., at 102.
713
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