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want to go to prison for the rest of his life.  After approximately one day of deliberation, the jury returned a verdict of death.  Thereafter, the trial court granted a new trial motion as to penalty based upon the giving of an improper commutation instruction.  (See People v. Snow, supra, 44 Cal.3d at p. 221.)

The second penalty trial did not fare much better for the defense, which again offered no mitigating evidence, but did submit its guilt phase evidence in support of a lingering doubt defense, which Miller argued to the jury at some length.  The second jury, like the first, returned a verdict of death.

In short, from the record of the first trial, it is quite clear that defendant at that time was opposed to the presentation of any case in mitigation, including argument to the jury, and that attorney Miller had to work within those extreme limitations imposed by his client, to whatever extent possible.  At the very least we know that Miller was capable of making an appropriate record and demonstrated that he could make a thorough final argument for lingering doubt.

The course of events at this penalty trial was even more extraordinary.  The defense not only rested without making an opening statement, calling any witnesses, introducing any other evidence, or cross-examining any of the prosecution witnesses, but, following the prosecutor’s closing argument, defense counsel announced they would submit the case without any argument.  Counsel further refused to tell the court their reasons for this decision.  Yet defendant, when asked by the court at one point whether he wanted a new attorney appointed to argue to the jury in his behalf, answered “yes.”  Finally, assured by still another attorney, who had earlier in the trial assisted Miller and Maple in presenting a petition for writ of mandate to the Court of Appeal, that the two appointed attorneys were “representing the client’s best interests in their professional judgment,” the trial court accepted their decision not to make a penalty phase argument and submitted the case to the jury.

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