BELL, WARDEN v. CONE
No. 01-400
Supreme Court of the United States
Argued March 25, 2002—Decided May 28, 2002
535 U.S. 685
Robert L. Hutton, by appointment of the Court, 534 U. S. 1111, argued the cause for respondent.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Tennessee Court of Appeals rejected respondent‘s claim that his counsel rendered ineffective assistance during his sentencing hearing under principles announced in Strickland v. Washington, 466 U. S. 668 (1984). The Court of Appeals for the Sixth Circuit concluded that United States v. Cronic, 466 U. S. 648 (1984), should have controlled the state court‘s analysis and granted him a conditional writ of habeas corpus. We hold that respondent‘s claim was governed by Strickland, and that the state court‘s decision neither was
I
In 1982, respondent was convicted of, and sentenced to death for, the murder of an elderly couple in Memphis, Tennessee. The killings culminated a 2-day crime rampage that began when respondent robbed a Memphis jewelry store of approximately $112,000 in merchandise on a Saturday in August 1980. Shortly after the 12:45 p.m. robbery, a police officer in an unmarked vehicle spotted respondent driving at a normal speed and began to follow him. After a few blocks, respondent accelerated, prompting a high-speed chase through midtown Memphis and into a residential neighborhood where respondent abandoned his vehicle. Attempting to flee, respondent shot an officer who tried to apprehend him, shot a citizen who confronted him, and, at gunpoint, demanded that another hand over his car keys. As a police helicopter hovered overhead, respondent tried to shoot the fleeing car owner, but was frustrated because his gun was out of ammunition.
Throughout the afternoon and into the next morning, respondent managed to elude detection as police combed the surrounding area. In the meantime, officers inventorying his car found an array of illegal and prescription drugs, the stolen merchandise, and more than $2,400 in cash. Respondent reappeared early Sunday morning when he drew a gun on an elderly resident who refused to let him in to use her telephone. Later that afternoon, respondent broke into the home of Shipley and Cleopatra Todd, aged 93 and 79 years old, and killed them by repeatedly beating them about the head with a blunt instrument. He moved their bodies so that they would not be visible from the front and rear doors and ransacked the first floor of their home. After shaving his beard, respondent traveled to Florida. He was arrested
A Tennessee grand jury charged respondent with two counts of first-degree murder in the perpetration of a burglary in connection with the Todds’ deaths, three counts of assault with intent to murder in connection with the shootings and attempted shooting of the car owner, and one count of robbery with a deadly weapon for the jewelry store theft. At a jury trial in the Criminal Court of Shelby County, the prosecution adduced overwhelming physical and testimonial evidence showing that respondent perpetrated the crimes and that he killed the Todds in a brutal and callous fashion.
The defense conceded that respondent committed most of the acts in question, but sought to prove that he was not guilty by reason of insanity. A clinical psychologist testified that respondent suffered from substance abuse and posttraumatic stress disorders related to his military service in Vietnam. A neuropharmacologist recounted at length respondent‘s history of illicit drug use, which began after he joined the Army and escalated to the point where he was daily consuming “rather horrific” quantities. Tr. 1722-1763. That drug use, according to the expert, caused chronic amphetamine psychosis, hallucinations, and ongoing paranoia, which affected respondent‘s mental capacity and ability to obey the law. Defense counsel also called respondent‘s mother, who spoke of her son coming back from Vietnam in 1969 a changed person, his honorable discharge from service, his graduation with honors from college, and the deaths of his father and fiancée while he was in prison from 1972-1979 for robbery. Although respondent did not take the stand, defense counsel was able to elicit through other testimony that he had expressed remorse for the killings. Rejecting his insanity defense, the jury found him guilty on all charges.
Punishment for the first-degree murder counts was fixed in a separate sentencing hearing that took place the next day and lasted about three hours. Under then-applicable Ten-
During its opening statement, the State said it would prove four aggravating factors: that (1) respondent had previously been convicted of one or more felonies involving the use or threat of violence to a person; (2) he knowingly created a great risk of death to two or more persons other than the victim during the act of murder; (3) the murder was especially heinous, atrocious, or cruel; and (4) the murder was committed for the purpose of avoiding lawful arrest. In his opening statement, defense counsel called the jury‘s attention to the mitigating evidence already before them. He suggested that respondent was under the influence of extreme mental disturbance or duress, that he was an addict whose drug and other problems stemmed from the stress of his military service, and that he felt remorse. Counsel urged the jury that there was a good reason for preserving his client‘s life if one looked at “the whole man.” App. 26. He asked for mercy, calling it a blessing that would raise them above the State to the level of God.
The prosecution then called a records custodian and fingerprint examiner to establish that respondent had three armed robbery convictions and two officers who said they tried unsuccessfully to arrest respondent for armed robbery after the jewelry store heist. Through cross-examination of the records custodian, respondent‘s attorney brought out that his client had been awarded the Bronze Star in Vietnam. After defense counsel successfully objected to the State‘s proffer of photos of the Todds’ decomposing bodies, both sides rested. The junior prosecuting attorney on the case
Respondent then petitioned for state postconviction relief, contending that his counsel rendered ineffective assistance during the sentencing phase by failing to present mitigating evidence and by waiving final argument. After a hearing in which respondent‘s trial counsel testified, a division of the Tennessee Criminal Court rejected this contention. The Tennessee Court of Appeals affirmed. Cone v. State, 747 S. W. 2d 353 (1987). The appellate court reviewed counsel‘s explanations for his decisions concerning the calling of witnesses and the waiving of final argument. Id., at 356-357. Describing counsel‘s representation as “very conscientious,” the court concluded that his performance was within the permissible range of competency, citing Baxter v. Rose, 523 S. W. 2d 930 (Tenn. 1975), a decision the Tennessee Supreme Court deems to have announced the same attorney performance standard as Strickland v. Washington, 466 U. S. 668 (1984). See, e. g., State v. Burns, 6 S. W. 3d 453, 461 (1999). The court also expressed its view that respondent received the death penalty based on the law and facts, not on the shortcomings of counsel. 747 S. W. 2d, at 357-358. The Tennessee Supreme Court denied respondent permission to appeal, and we denied further review, Cone v. Tennessee, 488 U. S. 871 (1988).
In 1997, after his second application for state postconviction relief was dismissed, respondent sought a federal writ
The Court of Appeals affirmed the refusal to issue a writ with respect to respondent‘s conviction, but reversed with respect to his sentence. 243 F. 3d 961, 979 (CA6 2001). It held that respondent suffered a Sixth Amendment violation for which prejudice should be presumed under United States v. Cronic, 466 U. S. 648 (1984), because his counsel, by not asking for mercy after the prosecutor‘s final argument, did not subject the State‘s call for the death penalty to meaningful adversarial testing. 243 F. 3d, at 979. The state court‘s adjudication of respondent‘s Sixth Amendment claim, in the Court of Appeals’ analysis, was therefore an unreasonable application of the clearly established law announced in Strickland. 243 F. 3d, at 979. We granted certiorari, 534 U. S. 1064 (2001), and now reverse the Court of Appeals.
II
The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court‘s role in reviewing state prisoner applications in order to prevent federal habeas “retrials” and to ensure that state-court convictions are given effect to the extent possible under law. See Williams v. Taylor, 529 U. S. 362, 403-404 (2000). To these ends,
“(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United States.”2
As we stated in Williams,
Petitioner contends that the Court of Appeals exceeded its statutory authority to grant relief under
In Strickland, which was decided the same day as Cronic, we announced a two-part test for evaluating claims that a defendant‘s counsel performed so incompetently in his or her representation of a defendant that the defendant‘s sentence or conviction should be reversed. We reasoned that there would be a sufficient indication that counsel‘s assistance was defective enough to undermine confidence in a proceeding‘s result if the defendant proved two things: first, that counsel‘s “representation fell below an objective standard of reasonableness,” 466 U. S., at 688; and second, that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different,” id., at 694. Without proof of both deficient performance and prejudice to the defense, we concluded, it could not be said that the sentence or conviction “resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable,” id., at 687, and the sentence or conviction should stand.
In Cronic, we considered whether the Court of Appeals was correct in reversing a defendant‘s conviction under the Sixth Amendment without inquiring into counsel‘s actual performance or requiring the defendant to show the effect it had on the trial. 466 U. S., at 650, 658. We determined that the court had erred and remanded to allow the claim to be considered under Strickland‘s test. 466 U. S., at 666-667, and n. 41. In the course of deciding this question, we identified three situations implicating the right to counsel that involved circumstances “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id., at 658-659.
First and “[m]ost obvious” was the “complete denial of counsel.” Id., at 659. A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at “a critical stage,” id., at 659, 662, a phrase we used
Respondent argues that his claim fits within the second exception identified in Cronic because his counsel failed to “mount some case for life” after the prosecution introduced evidence in the sentencing hearing and gave a closing statement. Brief for Respondent 26. We disagree. When we
The aspects of counsel‘s performance challenged by respondent—the failure to adduce mitigating evidence and the waiver of closing argument—are plainly of the same ilk as other specific attorney errors we have held subject to Strick-
We hold, therefore, that the state court correctly identified the principles announced in Strickland as those governing the analysis of respondent‘s claim. Consequently, we find no merit in respondent‘s contention that the state court‘s adjudication was contrary to our clearly established law. Cf. Williams, 529 U. S., at 405 (“The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed‘” (quoting Webster‘s Third New International Dictionary 495 (1976))).
III
The remaining issue, then, is whether respondent can obtain relief on the ground that the state court‘s adjudication of his claim involved an “unreasonable application” of Strickland. In Strickland we said that “[j]udicial scrutiny of a counsel‘s performance must be highly deferential” and that “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” 466 U. S., at 689. Thus, even when a court is presented with an ineffective-assistance claim not subject to
For respondent to succeed, however, he must do more than show that he would have satisfied Strickland‘s test if his
Respondent‘s counsel was faced with the formidable task of defending a client who had committed a horribly brutal and senseless crime against two elderly persons in their home. He had just the day before shot a police officer and an unarmed civilian, attempted to shoot another person, and committed a robbery. The State had near conclusive proof of guilt on the murder charges as well as extensive evidence demonstrating the cruelty of the killings. Making the situation more onerous were the facts that respondent, despite his high intelligence and relatively normal upbringing, had turned into a drug addict and had a history of robbery convictions.
Because the defense‘s theory at the guilt phase was not guilty by reason of insanity, counsel was able to put before the jury extensive testimony about what he believed to be the most compelling mitigating evidence in the case—evidence regarding the change his client underwent after serving in Vietnam; his drug dependency, which apparently drove him to commit the robbery in the first place; and its effects. Before the state courts, respondent faulted his counsel for not recalling his medical experts during the sentencing hearing. But we think counsel reasonably could have concluded that the substance of their testimony was still fresh to the jury. Each had taken the stand not long before, and counsel focused on their testimony in his guilt phase closing argument, which took place the day before the sentencing hearing was held. Respondent‘s suggestion that the jury could not fully consider the mental health proof as
Respondent also assigned error in his counsel‘s decision not to recall his mother. While counsel recognized that respondent‘s mother could have provided further information about respondent‘s childhood and spoken of her love for him, he concluded that she had not made a good witness at the guilt stage, and he did not wish to subject her to further cross-examination. Respondent advances no argument that would call his attorney‘s assessment into question.
In his trial preparations, counsel investigated the possibility of calling other witnesses. He thought respondent‘s sister, who was closest to him, might make a good witness, but she did not want to testify. And even if she had agreed, putting her on the stand would have allowed the prosecutor to question her about the fact that respondent called her from the Todds’ house just after the killings. After consulting with his client, counsel opted not to call respondent himself as a witness. And we think counsel had sound tactical reasons for deciding against it. Respondent said he was very angry with the prosecutor and thought he might lash out if pressed on cross-examination, which could have only alienated him in the eyes of the jury. There was also the possibility of calling other witnesses from his childhood or days in the Army. But counsel feared that the prosecution might elicit information about respondent‘s criminal history.5
He further feared that testimony about respondent‘s normal youth might, in the jury‘s eyes, cut the other way.
Respondent also focuses on counsel‘s decision to waive final argument. He points out that counsel could have explained the significance of his Bronze Star decoration and argues that his counsel‘s failure to advocate for life in closing necessarily left the jury with the impression that he deserved to die. The Court of Appeals “reject[ed] out of hand” the idea that waiving summation could ever be considered sound trial strategy. 243 F. 3d, at 979. In this case, we think at the very least that the state court‘s contrary assessment was not “unreasonable.” After respondent‘s counsel gave his opening statement discussing the mitigating evidence before them and urging that they choose life for his client, the prosecution did not put on any particularly dramatic or impressive testimony. The State‘s witnesses testified rather briefly about the undisputed facts that respondent had prior convictions and was evading arrest.
When the junior prosecutor delivered a very matter-of-fact closing that did not dwell on any of the brutal aspects of the crime, counsel was faced with a choice. He could make a closing argument and reprise for the jury, perhaps in greater detail than his opening, the primary mitigating evidence concerning his client‘s drug dependency and posttraumatic stress from Vietnam. And he could plead again for life for his client and impress upon the jurors the importance of what he believed were less significant facts, such as the Bronze Star decoration or his client‘s expression of remorse. But he knew that if he took this opportunity, he would give the lead prosecutor, who all agreed was very persuasive, the
We cautioned in Strickland that a court must indulge a “strong presumption” that counsel‘s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. 466 U. S., at 689. Given the choices available to respondent‘s counsel and the reasons we have identified, we cannot say that the state court‘s application of Strickland‘s attorney-performance standard was objectively unreasonable. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, dissenting.
In my judgment, the Court of Appeals correctly concluded that during the penalty phase of respondent‘s capital murder trial, his counsel “entirely fail[ed] to subject the prosecution‘s case to meaningful adversarial testing.” United States v. Cronic, 466 U. S. 648, 659 (1984). Counsel‘s shortcomings included a failure to interview witnesses who could have provided mitigating evidence; a failure to introduce available mitigating evidence; and the failure to make any closing argument or plea for his client‘s life at the conclusion of the penalty phase. Furthermore, respondent‘s counsel was, subsequent to trial, diagnosed with a mental illness that ren-
I
Certain facts about respondent, Gary Cone, are not in dispute. Cone was a “gentle child,” of exceptional intelligence, with an outstanding academic record in high school. App. 62-63. His father was an officer in the United States Army and a firm disciplinarian. He apparently enjoyed a loving relationship with his older brother and with both of his sisters. At age 8 or 9, however, Cone witnessed the drowning of his older brother. In 1966, at age 18, Cone enlisted in the Army and was sent to Germany. He was eventually transferred to Vietnam, where he served as a supply clerk until 1969. His service in Vietnam involved, among other things, transporting corpses and performing long hours of guard duty. He was awarded the Bronze Star, and he received an honorable discharge.
After returning to the States, Cone graduated from college and, although accepted into law school for August/September 1980, never enrolled. According to Cone, he began to use drugs—mainly amphetamines—while in Vietnam, in order to perform extended guard duties, and he continued to do so after his discharge from the Army. In an apparent effort to fund this growing drug habit, he committed robberies, and, in 1972, after college, he was convicted of armed robbery and incarcerated in Oklahoma until 1979. While he was in prison, his father died and his fiancée, whom he met while in college, was raped and murdered. After his release from prison, he kept in touch with his mother (who lived in Arkansas) and his sister (who lived in Chicago), but did not stay in one place. The lack of evidence of gainful employment post-1979, coupled with evidence of travels to
The Court has fairly described the facts of respondent‘s crime. Ante, at 689-690. However, in order to understand both why Cronic applies in the present case, and how counsel completely failed respondent at the penalty phase, I describe the events at trial in more detail. In his opening statement at the guilt phase of the trial, respondent‘s counsel, John Dice, admitted to the jury that Cone had committed the crimes for which he was charged, but explained that he was not guilty by reason of insanity—a condition brought on by excessive drug use that resulted from “Vietnam Veterans Syndrome.” See, e. g., Tr. 956-957.1 Dice explained to the jury that Cone‘s time in Vietnam had transformed him, leading to his insanity, and Dice promised several witnesses in aid of this insanity defense, including Cone‘s sister Susan, Cone‘s mother, and his two aunts, all of whom would “testify about the Gary Cone that they knew,” id., at 953, that is, the
Despite these promises, after the State‘s affirmative case in the guilt phase, Dice presented only three witnesses in support of the insanity defense: Cone‘s mother testified about his behavior after his return from Vietnam, but the court largely precluded her from discussing Cone‘s pre-Vietnam life; a clinical psychologist testified about posttraumatic stress resulting from Cone‘s Vietnam service; and a neuropharmacologist testified about Cone‘s drug use and its effects. Through these witnesses, Dice attempted to paint a picture of a normal person who fell victim to “amphetamine psychosis” and became a “junkie of such unbelievable proportions that it would have been impossible for him to form any intent.” Id., at 957. Cone was not a witness at the guilt phase, though he did take the stand outside the presence of the jury to waive his right to testify.
In its rebuttal case, the State adduced the testimony of Aileen Blankman, whom Cone visited in Florida approximately one day after the murders. She testified that respondent neither used drugs while visiting her, nor appeared to have recently used drugs, thereby calling into question his claim of drug addiction. According to Dice‘s co-counsel, Blankman‘s testimony “utterly destroyed our defense. We were totally unprepared for that.” State Postconviction Tr. 42. Dice knew of Blankman‘s contact with Cone after the murders, and was “absolutely” aware that Blankman was
Dice‘s stated attitude toward the penalty phase must frame our consideration of the constitutional standard applicable to this case. Once his “Vietnam Veterans Syndrome” defense was rejected in the guilt phase, it appears that Dice approached the penalty phase with a sense of hopelessness because his “basic tactic was to try to convince the jury that Gary Cone was insane at the time of the commission of these acts, and the jury rejected that.” State Postconviction Tr. 109. Dice perceived that the guilt phase evidence concerning Cone‘s mental health “made absolutely no difference to the jury,” id., at 159, and that the jurors “weren‘t buying any of it,” id., at 156, even though that evidence had been introduced to the jury through the lens of the insanity defense, not as mitigation for the death penalty.4 Dice‘s co-
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
Dice also failed to present to the jury mitigation evidence that he did have on hand. He admitted that other witnesses—including those whose testimony he promised to the jury in the guilt phase opening, such as Cone‘s mother, sister, and aunts—had been interviewed and were available to testify at the penalty phase. Dice had ready access to other mitigation evidence as well: testimony from Cone himself (in which he could have, among other things, expressed remorse and discussed his brother‘s drowning and his fiancee‘s murder), the letter of forgiveness from the victim‘s sister, the Bronze Star, and the medical experts. Dice‘s post hoc reasons for not putting on these additional witnesses and evidence are puzzling, but appear to rest largely on his incorrect assumption that the guilt phase record already included “what little mitigating circumstances we had,” State Postconviction Tr. 133, and his fear of the prosecutor, “who by all accounts was an extremely effective advocate,” ante, at 692; see, e. g., State Postconviction Tr. 105, 107-108, 123, 136, 137.
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
Dice did not put Cone on the stand during the penalty phase, forfeiting the opportunity for him to express the remorse he apparently felt, see Tr. 1675. Dice testified that he discussed with Cone the possibility of testifying, but opted not to call him at the penalty phase because of fear that respondent might “lash out if pressed on cross-examination.” Ante, at 700. He also claimed that Cone made the decision not to testify at the penalty phase because Cone feared the prosecutor. In Dice‘s words, Cone “realized that [the prosecutor] was a very intelligent and skilled cross-examiner and [Cone] felt that he would go off if he took the stand.” State Postconviction Tr. 103. However, this explanation conspicuously echoes Dice‘s own fears about the prosecutor‘s prowess. Furthermore, respondent testified that Dice never “urged [him] as to the importance of testifying at the penalty stage,” id., at 204, and Dice testified that his duties did not include urging Cone to testify, id., at 119. Given the undisputed evidence of Cone‘s intelligence and no indication that his behavior in the courtroom was anything but exemplary, it is difficult to imagine why any competent lawyer would so readily abandon any effort to persuade his client to take the stand when his life was at stake. Dice‘s claim that he did no more than permit Cone to reach his own decision about testifying in the penalty phase is simply not credible. Rather, it appears that Dice, fearful of the prosecutor, did not specifically discuss testifying in the penalty
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 Vietnam11 or other traumatic events in his
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 fiancee; 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 4 1/2 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
Both of the experienced criminal lawyers who testified as expert witnesses in the state postconviction proceedings refused to state categorically that it would never be appropriate to waive closing argument, to fail to put the defendant on the stand during the penalty phase of the trial, or to offer no mitigating evidence in the penalty phase. Both witnesses agreed, however, that Dice‘s tactical decisions were
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 evi-
A theme of fear of possible counterthrusts by his adversaries permeates Dice‘s loquacious explanations of his tactical decisions. But fear of the opponent cannot justify such absolute dereliction of a lawyer‘s duty to the client—especially a client facing death. For “[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 862 (1975). There may be cases in which such timidity is consistent with a “meaningful adversarial testing” of the prosecution‘s case, Cronic, 466 U.S., at 659, but my examination of the record has produced a firm conviction that this is not such a case.
The Court claims that Cronic‘s second prong only applies when “counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole.” Ante, at 697 (emphasis added). But that is exactly what Dice did. It is true, as the Court claims, that respondent‘s complaints about Dice‘s performance can be framed as complaints about what Dice failed to do “at specific points,” ibid. However, when those complaints concern “points” that encompass all of counsel‘s fundamental duties at a capital sentencing proceeding—performing a mitigation investigation, putting on available mitigation evidence, and making a plea for the defendant‘s life after the State has asked for death—counsel has failed
The majority also claims that Cronic‘s second prong does not apply because this Court has previously analyzed claims “of the same ilk,” ante, at 697, under Strickland, not Cronic. However, in none of our previous cases applying Strickland to a penalty phase ineffectiveness claim did the challenged attorney not only fail to conduct a penalty phase investigation, but also fail to put on available mitigation evidence and fail to make a closing argument asking to spare the defendant‘s life. See Williams v. Taylor, 529 U.S. 362 (2000); Burger v. Kemp, 483 U.S. 776 (1987); and Darden v. Wainwright, 477 U.S. 168 (1986). Furthermore, in none of these cases was there evidence that counsel had as “radical” a view of the penalty phase as Dice‘s, and in none of these cases was the lawyer‘s own mental health called into question, as it has been here. It is, of course, true that a “total” failure claim, which we confront here, could theoretically be analyzed under Strickland. However, as Cronic makes clear, see ante, at 695-696, although Strickland could apply in all Sixth Amendment right to counsel cases, it does not.
Moreover, presuming prejudice when counsel has entirely failed to function as an adversary makes sense, for three reasons. First, counsel‘s complete failure to advocate, coupled here with his likely mental illness, undermines Strickland‘s
The Court‘s holding today is entirely consistent with its recent decision in Mickens. In both cases, according to the Court, a presumption that every lawyer in every capital case has performed ethically, diligently, and competently is appropriate because such performance generally characterizes the members of an honorable profession. It is nevertheless true that there are rare cases in which blind reliance on that presumption, or uncritical analysis of a lawyer‘s proffered explanations for aberrant behavior in the courtroom, may result in the denial of the constitutional “right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). The importance of protecting this right in capital cases cannot be overstated.17 Effective representa-
I respectfully dissent.
APPENDIX TO OPINION OF STEVENS, J.
Excerpt from Dice‘s postconviction testimony in which he explains his reasons for waiving closing argument:
“Q: While we‘re on that subject, will you summarize for us all the reasons that you had at that time, and not at this time, but at that time, for waiver of final argument in the penalty phase of the Cone matter?
“A: Okay. Number one; I thought that we had put on almost every mitigating circumstance that we had. Okay? In the first phase of the trial.
“Number two; I managed to sucker Mr. Patterson and Mr. Strother into putting on my Bronze Star decoration without having my defendant testify, which I felt was pretty good trial tactics. I know when I asked Mr. Blackwell that question, one of the two of them over there became unglued. Okay.
“Number three; I thought the trial judge had lost control of the case. He allowed Mr. Strother to call me unethical twice in front of the jury, and he did several things in there
“Okay. I‘m saying the general feeling of that was going—the trial was not being conducted neutrally by the judge. Okay.
“The other thing that got to me about the aspects of why to waive, I knew again that they were so much out for blood that they‘d screw up their own trial in terms of what the jury was going to find.
“Okay. Another factor is that my defendant told me that he would probably explode on the stand with anger if General Strother cross-examined him, and I know Don Strother to be an extremely competent cross-examiner.
“Q: Just so we‘ll be clear now. I‘ve asked you to name the reasons for waiving final argument. Was whether or not what you just said about Mr. Cone possibly exploding, did that have anything to do with waiving final argument?
“A: Absolutely it did. I didn‘t make that decision at the last moment at all, Mr. Kopernak. That decision was carefully planned out. When the jury was only out for an hour, when they were only out for an hour, and I think it was close to that, and long before the trial I considered that as a trial tactic. Now, all these factors were being considered, not just one.
“Q: Okay. Go ahead, please.
“A: Okay.
“Q: Do you want me to go over those so you‘ll—(Interrupted)
“A: No, because I recall most of them pretty clearly. You know, we‘d had all those things go on, and some of the things which had happened in the trial, and when Ural Adams had done that in the Groseclose case and he and I had spent so much time talking about whether or not to do it, I considered
Notes
Members of this Court have similarly recognized both the importance of qualified counsel in death cases, and the frequent lack thereof. See, e. g., McFarland v. Scott, 512 U.S. 1256 (1994) (Blackmun, J., dissenting from denial of certiorari) (describing the “crisis in trial and state postconviction legal representation for capital defendants“); Lane, O‘Connor Expresses Death Penalty Doubt; Justice Says Innocent May Be Killed, Washington Post, July 4, 2001, p. A1 (reporting JUSTICE O‘CONNOR‘s comment that “Perhaps it‘s time to look at minimum standards for appointed counsel in death cases” and JUSTICE GINSBURG‘s comment that “I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial“).