accepting the waiver and sending the case to the jury without any attorney to argue for the defense. The court’s error resulted in the complete absence of an attorney’s assistance to defendant at a critical stage of trial, a clear deprivation of his Sixth Amendment right to counsel. The error was prejudicial, for the court’s erroneous acceptance of counsel’s waiver of argument, following as it did their decision not to make any opening statement, present any mitigating evidence, or cross-examine any of the People’s witnesses, resulted in what may be described either as a “complete denial of counsel” (United States v. Cronic, supra, 466 U.S. at p. 659) at the critical stage of jury argument or as a complete failure of the defense to subject the prosecution’s penalty phase case “to meaningful adversarial testing” (ibid.). Either way, “there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (Ibid.)37
Acknowledging that a bona fide argument for sparing the defendant’s life may virtually always be made at the penalty phase, the majority nonetheless suggests that here Miller and Maple had nothing to argue because no mitigating evidence had been introduced. To the contrary, I believe the concept of residual or lingering doubt—which does not depend on introduction of mitigating evidence—would have provided the basis for an appropriate and possibly effective penalty
37 Contrary to the majority’s suggestion (maj. opn., ante, at p. 91), I refer to the fact no mitigating evidence was introduced not to demonstrate ineffective assistance of counsel, but only to explain how the court’s later decision to submit the case to the jury without any attorney having argued for defendant resulted in a complete failure of adversarial testing at the penalty phase.