Yesterday, the U.S. Supreme Court heard oral arguments in Cone v. Bell. The Scotus Wiki page is here; the transcript, here.
Adam Liptak reports, "Justices Weigh Misconduct in Tennessee Murder Case," in today's New York Times.
Gary B. Cone admitted to the murders, and the only defense he offered at his trial was that he had been in an amphetamine psychosis. Prosecutors worked hard to discredit the defense, calling it “baloney.” Years later, though, it turned out that prosecutors had withheld evidence from Mr. Cone’s lawyers that would have supported his claim.
Jennifer L. Smith, a lawyer in the state attorney general’s office, was vigorous in her defense of the prosecutors’ conduct. She said that they had no legal or ethical obligation to provide the information to the defense and that it would not have mattered anyway.
Justice David H. Souter, who served as the attorney general of New Hampshire early in his career, did not like those answers. “I will be candid with you,” he told Ms. Smith. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
After Mr. Cone’s lawyers finally obtained the withheld evidence more than a decade after his conviction, prosecutors gave the courts a series of wildly inconsistent reasons for why Mr. Cone’s conviction and death sentence should not be re-examined in light of the new information. The issue had already been decided, they said. Or it had been presented too late. Or it had never been presented at all.
On this point, Ms. Smith was willing to acknowledge that prosecutors had made missteps. “We have confessed that there was an error by the state,” she said. But she seemed to place some of the blame on Mr. Cone, saying his lawyers had filed unwieldy and confusing papers.
“He buried all his good arguments,” Ms. Smith said of Mr. Cone.
Justice Stephen G. Breyer said Mr. Cone’s briefs had been clear enough.
“Don’t you think,” Justice Breyer asked Ms. Smith, that Mr. Cone was “saying in his briefs: ‘I’ve been getting the runaround. First, they tell me it’s one thing; then they tell me another’?”
Ms. Smith said Mr. Cone had received a full and fair review in the lower courts.
The Supreme Court has twice before considered Mr. Cone’s case. Earlier, the court reversed rulings from the federal appeals court in Cincinnati that had favored Mr. Cone. This time, the appeals court, the United States Court of Appeals for the Sixth Circuit, ruled for the prosecution.
Mr. Cone, a decorated Vietnam War veteran, killed Shipley Todd, 93, and his wife, Cleopatra, 79, in their Memphis home at the end of a two-day crime spree in 1980. “Our defense,” Thomas C. Goldstein, a lawyer for Mr. Cone told the justices, “was amphetamine psychosis brought on by post-traumatic stress disorder from honorable service in Vietnam.”
Police reports and statements from witnesses in the prosecutors’ files supported Mr. Cone’s claim that he had been a heavy drug user, but they were not provided to the defense. Indeed, the trial prosecutor told the jury that Mr. Cone’s claim of drug addiction was “baloney” and that Mr. Cone was “a premeditated, cool, deliberate — and even cowardly, really — murderer.”
"Justices Question Withholding Of Evidence in Capital Case," is Robert Barnes report in the Washington Post.
The Supreme Court's oral arguments in Cone v. Bell yesterday began with exasperation, Justice Antonin Scalia incredulous that lawyers were at it again on behalf of a brutal murderer who the court twice has said could be put to death.
"How long has this case been going on?" Scalia asked the lawyer for Gary Bradford Cone, who bludgeoned 93-year-old Shipley Todd and his 79-year-old wife, Cleopatra, at their home in Memphis in the summer of 1980.
The judge asked: "And you want to go back down again" for more hearings?
But the arguments ended an hour later with a different emotion -- indignation -- as several justices angrily questioned why Tennessee prosecutors had withheld evidence that supported Cone's only defense: that he had committed the crimes during an amphetamine psychosis.
"If this was a case of just an honest mistake, it would be one thing," said Justice John Paul Stevens, adding that he worried about the "ethics of the profession."
"If it appears to have been a tactical decision and a tactical program, it seems to me very difficult to assume that the prosecutor thought it was really not important evidence."
Cone's case is a thicket of procedural questions, mistakes and dubious court rulings befitting a death penalty appeal that has bounced between state and federal courts for a quarter-century.
And yesterday's actions raised the intriguing possibility that the Supreme Court, which twice has overturned lower-court decisions that called into question Cone's death sentence, would reverse the latest decision that said he could be put to death.
"Supreme Court shows anger with prosecutors in 1980 Memphis murder case," is the AP report, via the Memphis Commercial Appeal.
The justices showed rare bursts of anger in discussing a local prosecutor's failure to turn over key evidence to lawyers defending Gary Bradford Cone.
The withheld information appears to bolster claims that Cone was in a drug-induced psychotic state when he beat to death an elderly couple during a robbery in Memphis.
"You're saying that the lawyer, the trained lawyer for the government, who knew this information and knew the defense, just what? Just overlooked it by accident? Just what?" Justice Stephen Breyer demanded of Jennifer Smith, representing Tennessee.
A few minutes later, Justice David Souter addressed Smith after she said prosecutors were not required to hand over the evidence in question. "I believe you have just made a statement to me that is utterly irrational," Souter said.
Earlier coverage of Cone v. Bell is here.
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