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argument in this case.38  The case in aggravation rested primarily on the facts of the murder for which defendant was convicted.  The evidence upon which the jury convicted, while legally sufficient, was entirely circumstantial and was far from absolutely conclusive; it consisted mainly of proof of motive and opportunity, together with a single fingerprint on a visor found elsewhere in Pasadena on the day of the killing, the unexplained presence of the victim’s telephone number in defendant’s notebook, and a prosecutor’s testimony—contradicted by credible defense evidence—that defendant had reacted without emotion when told of the victim’s death.  That the jurors would have been unanimously willing to send a man to his death on such evidence, had counsel reminded them of the weaknesses in the prosecution case and argued vigorously for the appropriateness of a life sentence, was not a foregone conclusion.

The majority places great emphasis on declarations filed under seal with another department of the superior court, in which trial counsel revealed some of the events and discussions that purportedly underlay their decision not to present mitigating evidence at the penalty phase.  For two simple reasons, however, those declarations are irrelevant to analysis of defendant’s principal claim, which is that the court erred in not appointing an attorney to argue for him to the jury.  First, the declarations relate to the investigation and presentation of mitigating evidence, not to the making of an argument to the jury.  Second, and more important, the declarations were not before the trial court at the time it decided to submit the case to the jury without defense argument.  They could not possibly have

38The majority minimizes this potential argument with the remark that “then again, Miller had taken that tack at the second penalty phase of defendant’s first trial,” where it was unsuccessful.  (Maj. opn., ante, at p. 82.)  Insofar as the majority implies that Miller could, as a competent strategy, have decided to do nothing rather than make a legitimate argument that had failed to persuade a different jury, which had heard evidence in a different trial, I fail to see the majority’s logic.

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