Cite as: 535 U. S. 685 (2002)
Stevens, J., dissenting
highly abnormal, and perhaps unprecedented in a capital case.
II
On these facts, and as a result of Dice's overwhelming failure at the penalty phase, the Court of Appeals properly concluded that Cronic controls the Sixth Amendment claim in this case, and that prejudice to respondent should be presumed. Given Dice's repeated and unequivocal testimony about Cone's truthfulness, together with Cone's apparent feelings of remorse, see Tr. 1675, Dice's decision not to offer Cone's testimony in the penalty phase is simply bewildering. And his decisions to present no mitigation case in the penalty phase,14 and to offer no closing argument in the face of the prosecution's request for death,15 are nothing short of incredible. Moreover, Dice's explanations for his decisions not only were uncorroborated, but were, in my judgment, patently unsatisfactory. Indeed, his rambling and often incoherent descriptions of his unusual trial strategy lend strong support to the Court of Appeals' evaluation of this case and its decision not to defer to Dice's lack of meaningful participation in the penalty phase as "strategy." 16
Although the state courts did not have the benefit of evidence concerning Dice's mental health, it appears from Dice's
14 Cf. Penry v. Lynaugh, 492 U. S. 302, 319 (1989) ("If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, 'evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse' " (quoting California v. Brown, 479 U. S. 538, 545 (1987) (O'Connor, J., concurring))).
15 Cf. Herring v. New York, 422 U. S. 853, 862 (1975) ("In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment").
16 Dice's main explanation of his decision to waive closing argument at the close of the penalty hearing is quoted in an appendix to this opinion.
715
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