dissenting:
INEFFECTIVE ASSISTANCE OF COUNSEL
The majority has placed defense lawyers in a catch-22 — a situation where they’re ineffective if they do, and they’re ineffective if they don’t.
The majority finds that the two defense counsel were ineffective in their approach to the issue of mercy by virtue of their failure to present any substantial evidence or argument on the issue of mercy. But it is also quite easy to imagine the majority finding ineffective assistance of counsel on the same issue had defense counsel failed to follow their client’s wishes.
It is a further irony that the writer of the majority opinion seems not to agree with his own conclusion, both in the commentary relating to the lawyers’ performance and in the discussion of the law.
First, the bulk of the law cited by the majority supports the position of defense counsel that their decision not to emphasize mercy in their defense was made (1) for strategical reasons and (2) at the direction of their client.
Prior to trial, defense counsel negotiated a favorable plea agreement for this defendant, wherein she could have pled guilty to second degree murder. This in and of itself demonstrates that defense counsel were effective, considering that this defendant shot the victim in the back for no discernible good reason, changed her story numerous times (giving police one statement in which she said she did it “to see what it was like to kill someone”), and given the fact that she was, by all accounts, a very difficult client and a terrible witness whose testimony was extremely damaging to her own case. The defendant was adamant, however, that she would accept nothing less than manslaughter, both in plea negotiations and trial strategy.
As recognized by the majority, our seminal case on the issue of ineffective assistance of counsel is State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Although the majority cites syllabus point 19 of Thomas for the general proposition that courts should “measure and compare the questioned counsel’s performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law ...,” they fail to include the equally important principle announced in syllabus point 21 of Thomas that: “Where a counsel’s performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client’s interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.”
Further, Rule 1.2(a) of the Rules of Professional Conduct cited by the majority provides:
A lawyer shall abide by a client’s decision concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify, (emphasis added)
This Court previously has addressed the issue of following the directives of the client, as required by Rule 1.2(a) of the Rules of Professional Conduct, in the context of an ineffective assistance of counsel issue.
*206We held in the syllabus of Asbury v. Mohn, 162 W.Va. 662, 256 S.E.2d 547 (1979), that “[c]ounsel is not ineffective when, following directions from his client, he does not appeal the client’s criminal conviction, where the client’s choice involves no legal judgment that the lawyer should overrule.” In Asbury, the client affirmatively opposed the prosecution of an appeal of a grand larceny conviction, based upon the client’s belief that an appeal would jeopardize his chances for parole. Id. 162 W.Va. at 666, 256 S.E.2d at 549. In holding that counsel’s assistance was not ineffective, we explained that “[i]t is too much to ask of counsel that in order that he be considered effective he must act directly contrary to his client's directions in a matter where the client’s choice involves no legal judgment that the lawyer should overrule.” Id.
We elaborated upon the Asbury reasoning in State v. Glover, 183 W.Va. 431, 396 S.E.2d 198 (1990). In Glover, we reiterated the distinction between clients’ directives involving no legal judgment and clients’ directives involving legal judgment. Where the directive of the client involves no legal judgment that the lawyer should overrule, as in Asbury, following the client’s directive will not be considered ineffective. In Glover, however, we encountered a situation wherein the client’s directive involved a legal judgment, specifically whether to file a timely notice of alibi. Despite the client’s instruction to the attorney to delay in interviewing potential alibi witnesses, the failure of the attorney to file a timely notice of alibi “cannot be excused on the ground that he was relying on the defendant’s instructions.” Id. 183 W.Va. at 435, 396 S.E.2d at 202. “Clearly, the interviewing of the alibi witnesses and the filing of the notice of alibi in this case were matters involving ‘legal judgment.’ ” Id.
Here the most critical decision that was made by the defendant, and the one most damaging to her interests, would appear to be the decision not to accept the plea agreement proposal. The decision to enter a plea of guilt, however, is that of a criminal defendant alone. One of the specific matters addressed by Rule 1.2(a) of the Rules of Professional Conduct is that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered....”
The majority tells us that at the habeas hearing defense counsel, Mr. Finnerin and Mr. Powell,
were also questioned also [sic] concerning their approach to dealing with the issue of mercy during closing argument. Mr. Finnerin stated that it was a judgment that he made during the course of the trial, by looking at the evidence, and then making the difficult decision about whether to mention mercy during closing. Mr. Powell stated that he and Mr. Finnerin had decided that they did not want to appear to be in the posture of admitting that their client was guilty of first-degree murder, and that mercy was the only real issue to be considered. For that reason, a strategic decision was made to argue the case the way it was argued. Further, because the prosecutor in his closing argument had argued that the only issue before the jury was mercy, defendant’s trial counsel did not want to appear to agree with him and give further credence to that notion.
These lawyers were faced with a difficult client and a difficult decision. They obviously considered the client’s adamant directives as well as the case in its entirety in arriving at the decision that their client’s best hope for a favorable result would be a de-emphasis on a mercy plea. This was certainly a decision involving “strategy, tactics and arguable courses of action ...” which should be deemed effectively assis-tive of the client’s interests “unless no reasonably qualified defense attorney” would have proceeded with the course of action chosen by these attorneys. Thomas, 157 W.Va. at 663, 203 S.E.2d at 461. It is clear from the record and all the circumstances of this case that these lawyers rendered effective assistance of counsel.
MERCY BIFURCATION
This issue points up the need for this Court to consider once again the possibility *207of bifurcating the issue of mercy in first degree murder cases.
The writer of the majority opinion penned an excellent dissent in State ex rel. Rasnake v. Narick, 159 W.Va. 542, 227 S.E.2d 203 (1976) and reiterated it as the basis for his dissent in State ex rel. Leach v. Hamilton, W.Va., 280 S.E.2d 62 (1980).
As a matter of fact, this dissenter can’t say it any better, so herewith Justice Neely’s dissent is repeated in pertinent part:
Under both the West Virginia rape and first degree murder statutes, W.Va.Code, § 62-3-15 [1965] and § 61-2-15 [1965] the jury determines guilt in the first instance and simultaneously determines whether life imprisonment or a lesser sentence will be imposed. While it is impossible to dictate standards to guide jury discretion in determining the question of whether mercy should be accorded a defendant, it does not follow that evidence with regard to the circumstances surrounding the perpetration of the crime, the motives of the accused, and the provocation which prompted the act are all irrelevant.
While the civil rules provide that a civil litigant may plead inconsistent defenses it is unreasonable to believe that a simultaneous assertion of innocence and mitigation is workable in a criminal jury trial. It is impossible for a criminal defendant to maintain his innocence, introduce evidence in support of that proposition, and simultaneously introduce all of the evidence which would tend to mitigate the punishment. Since evidence of mitigation can only be taken as a confession of guilt, the criminal defendant will frequently be forced, as a matter of strategy, to curtail or eliminate his presentation of evidence on mitigating circumstances. Any such compelled choice undeniably burdens the criminal defendant’s right to be heard on the issues of punishment and sentence.
On the other hand, a criminal defendant who chooses, from necessity, to introduce evidence on mitigation suffers the loss of his right to have the State prove its case beyond a reasonable doubt while he stands mute and offers no evidence on the issue of innocence. This is the time-tested way of securing a jury acquittal and as the right is constitutionally guaranteed to a defendant, any procedure which circumscribes its use is inherently unconstitutional.
Under our current unitary trial procedure it is necessary for a defendant to set forth all the mitigating circumstances which would bear upon a recommendation of mercy before the question of guilt is determined. There is no reason why a jury cannot hear evidence on mitigation after it has returned a verdict, as such a procedure imposes no unreasonable burden on the court which would outweigh the advantages to be obtained in terms of rational procedure.
Rasnake, 159 W.Va. at 553, 227 S.E.2d at 207-09 (footnotes and citations omitted).
Furthermore, a bifurcated hearing on the issue of mercy would not only permit the defendant a far broader latitude in presenting to the jury full information concerning the defendant’s life and circumstances and any mitigating evidence in an effort to obtain the balm of mercy. It would also permit the state an opportunity to present any information at its disposal as to the propriety (or lack thereof) of a grant of mercy. If a particular defendant has an egregious criminal history or a marked propensity for violence, for example, that would also be an appropriate factor for the jury to consider. The determination of whether a defendant should receive mercy is so crucially important that justice for both the state and defendant would be best served by a full presentation of all relevant circumstances without regard to strategy during trial on the merits.
I concur with the majority on the other tenets of its opinion. Obviously a circuit court has no authority to modify the jury finding of no mercy to award mercy as part of post-conviction habeas corpus relief on the basis of ineffective assistance of counsel. The fact that the circuit court did so fairly well indicates that the court knew *208defense counsel were not ineffective, but that the court felt sorry for this defendant and wanted to cut her a break. Perhaps the majority was similarly motivated, but it was also similarly wrong. Under the law of West Virginia, it is the jury’s prerogative — not the circuit court’s, nor the Supreme Court’s — to decide whether mercy is appropriate.