concurring:
I conclude that the majority is incorrect in ruling that the verdict form relative to mitigating circumstances “was not misleading.”
As I see it, not only is the “therefore” misleading — an indication that the death penalty verdict necessarily follows from the previous clause — I also think that putting emphasis on the phrase “not sufficient” is prejudicial to the accused.
Given the overall complexion of this case, I am willing to concur in its results and affirm the judgment of the trial court; however, I hate to see this court’s stamp of approval being placed on the lop-sided special verdict form that was submitted to the jury in this case.
Young, J.,concurring:
I concur with the reasoning and the result of the majority opinion, but write separately regarding the conduct of Leonard’s attorneys, Erik R. Johnson and Richard F. Cornell. As the majority notes, these attorneys harshly attack the competence of the counsel who preceded them and, worse yet, distort and disregard facts in their briefs to this court. These two tactics intertwine and form the basis for many if not most of the issues they raise on appeal.
In one example of unnecessary ridicule of Leonard’s trial counsel, Johnson and Cornell assert: “Foolishly, [trial counsel] intentionally rejected avoiding a death sentence through conviction of a lesser offense .... [and] gambled away Leonard’s life . . . .” Such rhetoric is inappropriate even if trial counsel had acted unreasonably; it is unacceptable when, as the majority opinion explains, trial counsel performed reasonably in arguing self-defense. If Johnson and Cornell had spun for the jury their own tale of “mutual combat” and collusion by a senior correctional officer, there is no doubt that a different attorney would now be before us questioning, with much sounder basis, their failed efforts.
Of greater concern, Johnson and Cornell repeatedly misrepresent the factual record to this court. The majority points out several instances, e.g., Johnson and Cornell misstate the forensic evidence in regard to the origins of the shank found in the sewer line and then rely on this misstatement to attack the competency of trial counsel. In an instance not cited by the majority, Johnson and Cornell claim that “undisputed evidence” supported the argument that the victim lay in wait for Leonard and that no *664witness “testified to facts which, if believed, would disprove” this argument. This claim is simply false. Correctional Officer Bascus testified that he saw Leonard run down the hallway and into the victim’s cell before Bascus-could close the cell door. When Bascus unlocked the door, he saw first the victim back out of his cell with blood on his leg and arm and then Leonard run out of the cell and tackle the victim. This testimony utterly contradicts the theory that the victim lay in wait and attacked Leonard.
In another instance, Johnson and Cornell accuse trial counsel of “discrediting] Leonard’s case” by agreeing “with the prosecutor’s position that there were ‘obvious errors’ in [testimony by two defense witnesses] for which he had no explanation.” The record shows, however, that trial counsel actually stated:
If these two individuals were going to concoct a story, I submit to you that the story would have been perfect in every respect, and not such an obvious error in their stories.
I have no explanation as to why their stories are not consistent, other than the fact that this was two years ago. These men did not put down in written reports as to what they saw. And that they did their best to try to recall what happened.
The majority is correct that these and other assertions made by Johnson and Cornell “go beyond fair argument and are misleading as to the facts.” However, admonishing both attorneys is inadequate. Their tactics of distortion and unfair disparagement are not inadvertent or isolated, but repeated and deliberate, and should not be tolerated by this court. Their attempts to mislead this court and their unjustified attacks on Leonard’s prior counsel warrant sanctions, which I would impose in the amount of $500.00 each, to be paid to the Supreme Court Library.