of the crime. The next morning (July 18, 1990), after a discussion about an instruction to be given on lingering doubt as a factor in mitigation, the court called on the defense for argument. Counsel Maple responded, “If your Honor pleases, on behalf of Mr. Miller and myself, we will submit the case to the jury without argument.”
Outside the presence of the jury, the court expressed its “astonish[ment]” that after receiving a continuance, and court funding, to perform investigation for the penalty phase of trial, the defense offered no witnesses and “not one word to the jury.” The court then asked counsel why they were not presenting “a sympathy or any other moralistic reason or any other reason on behalf of Mr. Snow.” After counsel conferred privately, the following colloquy occurred:
“The Court: Does counsel for the defense wish to respond to the court’s inquiry?
“Mr. Maple: I do not, your Honor.
“The Court: Mr. Miller?
“Mr. Miller: No, sir.
“The Court: Let the record reflect that this court has expended a great amount of funds as to this penalty trial for the defense attorneys’ investigation as to factors in mitigation. I have continued this trial almost six weeks [for penalty phase investigation]. I don’t know what the billings are for all these investigators in other states, but not one witness was called on behalf of Mr. Snow at the penalty trial. This astonishes the court. . . . Not one word is being argued in his behalf as to the penalty aspect of this trial before this jury. May I know why, counsel? Mr. Miller, have you any reply?
“Mr. Miller: No, sir. No, your Honor.
“The Court: Mr. Maple?
“Mr. Maple: No, your Honor.