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“Mr. Miller:  I cannot answer the court’s question.”35

After the discussion with Gerstein, however, the court noted that Gerstein had, in the court’s view, answered the question appointed counsel would not answer:

“The Court:  Now, with your statement, it appears that it’s solely tactical, and the presumption is that evidence to the contrary, the appellate court will take that presumption.

“Mr. Gerstein:  Well, your Honor, perhaps I have gone too far in saying that.

The Court:  Well, you made the statement and I’ve accepted it.”  (Italics added.)

The court then said it would accept the waiver and submit the case to the jury without defense argument.

Although the trial court correctly sought to determine, before appointing new counsel, whether current counsel had a valid tactical reason for waiving argument over the objection of their client, the court erred in finding, on the information before it, that counsel did have such a reason.  The appointed attorneys refused to say whether they had such a reason.  Attorney Gerstein stated that Miller and Maple believed they were acting in their client’s best interest, but expressly disavowed any representation that their reasons were tactical:

35According to the majority, Miller and Maple “believed that confidentiality or attorney-client privilege precluded them from informing the court of their reasons for electing their chosen course of action at the penalty trial.”  (Maj. opn., ante, at p. 86.)  As to counsel’s decision to waive argument, this statement is without support in the record.  Counsel steadfastly refused to give the trial court any indication of their reasons for that intended waiver, including any indication of why they could not or would not give their reasons.  

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