dissenting.
I dissent. A lawyer does not effectively represent a defendant by telling the jury it should find the defendant guilty.
The majority characterizes defense counsel’s closing argument at the guilt-innocence phase as than “less than fiery.” That is an understatement. In the closing argument, defense counsel told the jury he thought the appellant was guilty. The majority goes on to find that the argument “represented a well-reasoned trial strategy rather than an abdication of the adversarial system.” I disagree. The adversarial process protected by the sixth amendment to the United States Constitution requires that the defendant have counsel who acts as an advocate. United States v. Cronic, 466 U.S. 648, 656-57, 104 S.Ct. 2039, 2045-46, 80 L.Ed.2d 657 (1984). The defense counsel did not act as an advocate when he conceded the appellant’s guilt.
The concession of guilt by the lawyer in this case is remarkably similar to that in United States v. Swanson, 943 F.2d 1070 (9th Cir.1991). In Swanson, the defense lawyer said the defendant had a right to stand by his plea of not guilty; that evidence was overwhelming; that the evi*423dence did not raise reasonable doubt; and he did not want to insult the juror’s intelligence. Swanson, 943 F.2d at 1071.
In the case pending before us, the defense counsel said:
Ladies and gentlemen of the jury, at this time I don’t intend to take much of your time up, and I’m certainly not going to insult your intelligence. There’s been a few inconsistencies, but to be perfectly honest I don’t think those inconsistencies are sufficient enough to give rise enough for me to tell you, well, I think that's sufficient to find this man not guilty. That may be a strange thing to hear from a defense attorney, but things are the way things are, and I have to face facts and I have to face reality. So, I think this is an unusual type of situation, case being tried that puts me in this position.
The defense counsel’s argument eliminated the need for the State to' prove the appellant was guilty. Swanson, 943 F.2d at 1074. The defense counsel’s conduct tainted the integrity of the trial. Id. In Cronic, the Supreme Court said that “if counsel entirely fails to subject the prosecution’s case to the meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at 659, 104 S.Ct. at 2047 (1984).
A more direct way to refute the majority’s statement that defense counsel’s argument was not “abdication of the adversarial system” is to recall that the appellant pled not guilty. If the appellant wanted the jury to know that he was guilty, he would have pled guilty. The appellant had a right to a fair trial. He did not get one because his lawyer told the jury to convict him.
The prosecutor in this case, as did the prosecutor in Swanson, argues that it was strategy that caused defense counsel to make the argument. Because the prosecutor has not identified any strategy that can justify such argument, we should reject that argument. Swanson, 943 F.2d at 1071.
I would hold the appellant did not receive effective assistance of counsel and reverse the trial court’s judgment.