dissenting.
I conclude that Brewer was denied his constitutional right to effective assistance of counsel when his attorney knowingly used perjured testimony in an attempt to establish a phony alibi. To establish a sue-cessful claim of ineffectiveness of counsel, a defendant must show, first, that his attorney's performance fell below minimal professional standards and, second, that counsel's poor performance harmed the defense. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Both prongs of the Strickland standard are satisfied here.
It is beyond dispute that an attorney must not knowingly use false testimony. Code of Professional Responsibility, DR T-102(A)(4). To do so constitutes conduct below the minimum acceptable level. Id., Preliminary Statement. The record in this case clearly establishes that Brewer's counsel knew the alibi testimony was false. Ten days before the trial, Brewer told his attorney he had been robbing the Skirpan family with Kenneth Brooks when Steven Skirpan was killed. He told his attorney that the proposed alibi witnesses would manufacture their testimony. Counsel testified at the hearing on the motion to correct error, "I knew (the alibi) was staged all along."
The attorney recognized an ethical dilemma and, unfortunately, resolved it unethically. He determined wisely enough that he could not confer with the witnesses pri- or to trial and abet their lies, but he called them to the stand and knowingly elicited false testimony. By this conduct, Brewer's counsel represented him inadequately. It happened that the witnesses were, as counsel later stated, "ridiculously" unbelievable and their testimony blatantly contrived. Therefore, I believe the consequential harm to the defense was also beyond dispute.
The harm to Brewer resulting from counsel's performance was later exacerbated when, on counsel's advice, Brewer took the stand during the penalty phase of the bifurcated trial Counsel testified that he wanted to "humanize" Brewer in the eyes of the jurors, hoping they would become reluctant to sentence a fellow human being to die. He realized, of course, that they had not been misled by the perjurious alibi testimony; they had returned a verdict in a very short time. Instead of "humanizing" Brewer, his testimony resulted in the revelation that he kad been in the Skirpan's house and had asked the witnesses to lie for him at trial,. The State in turn used this admission to emphasize repeatedly to the jury that Brewer attempted to defraud them through his witnesses and that he was unwilling to take responsibility for his crime until cornered.
The State's evidence against Brewer was completely circumstantial. This Court acknowledged in its opinion on direct appeal that Brewer was never identified by the victims. Brewer v. State (1981), 275 Ind. 338, 417 N.E.2d 889. He was identified as the perpetrator and admitted his participation in other crimes committed that day with Kenneth Brooks, and Brooks was identified as one of the Skirpan robbers. Yet, the State had no direct proof that Brewer was in the Skirpan house. In fact, *379as this Court stated in its earlier opinion, "[The witnesses'] testimony concerning the height and the sound of the voice of the unidentified assailant did not match such characteristics of the defendant ...". Id., at 898.
This is a capital case and must be reviewed with utmost care. It seems to me reasonably likely that either the verdict or the jury's recommendation of death, or both, would have been different had the proceedings not been tainted with the poorly executed, abhorrent, and incriminating attempt to deceive the jury and the court. Any one of the jurors harboring a reasonable doubt about Brewer's guilt or a disinclination about recommending he be sentenced to death would likely have been persuaded otherwise when presented with his blatant attempt to prostitute the system.
The soundness of the process by which we reach these decisions is a matter of particular importance and a proceeding which featured full-fledged subornation of perjury and unethical action by defense counsel is not the best basis for the imposition of society's ultimate penalty. It is impossible to evoke any sympathy for James Brewer, whose desire to perpetrate a fraud created the opportunity to which his lawyer succumbed. Nevertheless, the lawyer's duty was to represent his client zealously, within the bounds of the law, and in the exercise of sound professional judgment, not to defer to the tactics of an untrained, uninformed client bent on a fraudulent alibi. Regardless of Brewer's dark intentions, he was entitled to a fair trial and effective representation. There is nothing in the record to indicate that Brewer, lacking intelligence and foresight, was advised ahead of time of the possible consequences of presenting perjured testimony. © I perceive no basis upon which a determination could be made that Brewer, by requesting this unsound and illegal strategy, waived his right to claim ineffectiveness of counsel.