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“The Court:  I am going to recess this matter until 1:30.  I wish to get a representative from the State Bar here.”

The jury was then released for lunch and told to return at 1:45 p.m.  Outside the presence of the prosecutors, the court continued its inquiries of defense counsel:23

“The Court:  Record should reflect that in the penalty trial the defense has presented no evidence in mitigation in behalf of Mr. Snow, and today I’ve learned that there will be no offer of arguments in behalf of Mr. Snow.  Mr. Miller, is this pursuant to the wishes of the defendant?

“Mr. Miller:  Your Honor, I’m in no position to answer the court’s question.

“The Court:  Thank you.  Is this pursuant to tactical reasons that you have developed in the course of this trial?

“Mr. Miller:  I cannot answer the court’s question.

“The Court:  And why, may I ask, are you not presenting arguments or any evidence in mitigation in light of the expenditure of this court in behalf of your defense?

“Mr. Miller:  Your Honor, I cannot answer the court’s question.

“The Court:  Mr. Snow, I inquired of you yesterday whether or not you were aware that you have a right to present evidence in this case . . . .  I believe I gave you a rundown as to what factors in mitigation you may present.  It may pertain to the case itself, it may pertain to your background, physical or mental condition, as well as any character evidence that you may have.  There was none.  

23 The transcript of this hearing held outside the presence of the district attorney was originally filed under seal.  Both defendant and the Attorney General have been provided copies of the transcript, both sides have briefed its contents, and neither objects to unsealing it.  Accordingly, the transcript in question is hereby ordered unsealed.

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