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the contrary.  Accordingly, by opting to forgo making an opening statement, calling any witnesses, introducing any other evidence, or cross-examining any of the prosecution witnesses, Miller and Maple must have intended to lay the groundwork for a successful claim, on appeal or in a petition for writ of habeas corpus, that they had “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” (Cronic, supra, 466 U.S. at p. 659), thereby relieving appellate or habeas corpus counsel of their usual burden under Strickland v. Washington, supra, 466 U.S. 668, of establishing prejudice from counsel’s deficient performance.

The problem with this argument, separate and apart from its speculation that trial counsel were willing to cast aside their ethical obligations and fall on their swords to build reversible error into the trial of a client who was adamantly unwilling to assist or cooperate with them in preparing a defense in a trial for his life,28 is that it fails to assign to defendant any role or responsibility whatsoever for the manner in which the penalty phase of his trial unfolded below.  Indeed, defendant suggests in his supplemental brief that “[a]s usual, caught in the middle of the debacle was Mr. Snow”—the “debacle” being counsel’s asserted wholesale abandonment of their client at the penalty phase and the trial court’s erroneous refusal to appoint new counsel for the purpose of making a penalty phase argument in the face of counsel’s deficient performance.

28 The very fact that Miller and Maple saw fit to file confidential declarations with the master calendar judge relating their difficulty in obtaining defendant’s cooperation in the investigation and preparation of a penalty phase defense militates against an inference that they intentionally forwent the presentation of penalty phase arguments for the purpose of building reversible error into their client’s cause.  Miller concluded his declaration with the statement that, “This declaration is submitted so that the appellate Court will be aware of the posture of the defense as we proceed into penalty trial.”  Why would he include such an explanation if he was intent on building reversible error into defendant’s trial?

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