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“Mr. Gerstein:  . . . I have no intention of saying . . . that it was a tactical decision as opposed to any other sort of decision.”  (Italics added.)

Nor do the circumstances known to the trial court at the time of its decision to accept counsel’s waiver of argument indicate the presence of a legitimate tactical or strategic reason for the waiver.  Leaving one’s client defenseless, without any evidence or argument on his behalf, at a capital sentencing hearing, when the facts of the crime and the prosecution’s evidence of aggravating circumstances give the jury ample reason to find death the appropriate punishment, is neither a generally recognized nor an acceptable strategy for capital representation.  (See Kubat v. Thieret (7th Cir. 1989) 867 F.2d 351, 368 [presentation of a “grossly substandard argument” at a capital sentencing hearing, after failing to present evidence in mitigation, was not a “competent strategic decision”]; Smith v. Stewart (9th Cir. 1998) 140 F.3d 1263, 1268-1269 [capital counsel who presented no mitigating evidence and, in argument, made only “a few asthenic comments to the effect that Smith still denied his guilt and that he was just 30 years of age” had no tactical reason]; Clabourne v. Lewis (9th Cir. 1995) 64 F.3d 1373, 1387 [making of perfunctory penalty argument, after presenting no mitigating evidence, “ ‘amount[ed] in every respect to no representation at all’ ”].)

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