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The Attorney General suggests counsel were pursuing a “strategy” of failing to perform on defendant’s behalf so as to “preserve an inadequacy of counsel issue for appeal.”  As Miller and Maple refused to give a reason for their decision not to argue on defendant’s behalf, any assignment of reasons to them would be speculative.  But even assuming the trial court made the same guess as the Attorney General now makes, the court nonetheless erred, as such a plan on counsel’s part could not be characterized as a competent strategy.  Miller and Maple were defendant’s trial attorneys.  Their job was to defend him zealously and with all their skill against the People’s criminal charges.  While a trial attorney should seek to preserve potential appellate issues as they arise, he or she must not abandon the effort to provide a competent trial defense in the hope of creating a claim for appeal.  (See Rules Prof. Conduct, rule 3-110(A) [attorney “shall not intentionally . . . fail to perform legal services with competence”].)  

36Bell v. Cone (2002) 535 U.S. 685 [122 S.Ct. 1843], cited by the majority (maj. opn., ante, at p. 84), is readily distinguishable.  The defense there had put on considerable mitigating evidence in an earlier stage of trial.  At the penalty trial (held the day after the jury returned its guilt verdicts), defense counsel made an opening statement in which he called the jury’s attention to the mitigating evidence already before them and argued the defendant was remorseful and the jury should exercise mercy and spare his life.  (535 U.S. at p. ___ [122 S.Ct. at p. 1848].)  After both sides rested, the junior prosecutor gave a “ ‘low key’ ” closing argument; the defense then waived closing argument, “preventing the lead prosecutor, who by all accounts was an extremely effective advocate, from arguing in rebuttal.”  (Ibid.)  In the present case, in contrast, the defense introduced no mitigating evidence at the guilt or penalty phase.  The penalty trial took place more than a month after the guilt verdicts were returned, and the defense gave no opening statement.  Moreover, before penalty argument began, the trial court ruled that the People would have no opportunity to rebut, and both prosecutors consequently gave their closing arguments before the defense was called on to argue.  The factors that arguably justified a tactical waiver of final argument in Bell v. Cone were entirely absent here.

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