Justices Question Withholding Of Evidence in Capital Case

Justice John Paul Stevens said the facts of the case made him worry about the
Justice John Paul Stevens said the facts of the case made him worry about the "ethics" of prosecutors. (J. Scott Applewhite - AP)
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By Robert Barnes
Washington Post Staff Writer
Wednesday, December 10, 2008

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.

There is no debate about the crime. Cole, a decorated Vietnam veteran, killed the couple in the midst of a spree that included shooting a police officer and robbing a jewelry store.

Jennifer L. Smith, a Tennessee associate deputy attorney general, told the justices that Cole broke into the Todds' home "with the purpose of getting fed, getting cleaned up and getting out of town, and when the Todds ceased to cooperate with him, he had to 'control them physically.' That's code, I suppose, for beating them to death because that's exactly what he did."

Cone raised an insanity defense, citing post-traumatic stress disorder from his Vietnam experience combined with his drug addiction. He presented several experts to testify on his behalf.

But the prosecutor said Cone was a drug dealer, not an addict. He noted that the experts relied solely on Cone's descriptions of his drug addition and called the assertions "baloney."

Cone was sentenced to death, a verdict upheld during his first trip through the state appellate courts.

It was years later that Cone and his attorneys gained access to the prosecutor's files. They discovered that police reports had noted Cone was a heavy drug user and that the description was used when sending out bulletins seeking law enforcement help for his capture. There was a report that Cone had looked frenzied and "wild-eyed" at the time of his crimes.

When Cone tried to present the evidence in a new round of appeals, Tennessee courts mistakenly said it had been considered and rejected.

Cone's attorney, Thomas C. Goldstein, told the justices that the evidence was key to his client's insanity defense or could at least be presented as a mitigating circumstance that would keep him from being put to death.

"What he wants is one shot" at presenting the evidence to a lower court, Goldstein said. But the question is whether the federal courts have the power to do what the lawyer wants. Chief Justice John G. Roberts Jr. was the most skeptical, saying lower federal courts had decided that the claim was without merit. "I don't know what would happen if we sent this case back," he said. "They would conclude it again."

But other justices were not as sanguine. Justice Stephen G. Breyer seemed particularly perturbed, challenging Smith on why the Memphis prosecutor had not turned over the evidence of drug use to Cone's attorney.

"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?" Breyer demanded.

Under repeated questioning from Justice David H. Souter about whether the evidence would have helped Cone, Smith finally said she did not think it would have.

"Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational," Souter said.

Smith said she didn't think it relevant because "additional evidence of drug use says nothing more about his state of mind at the time of the crime than what was already presented."

In the summer, Cone's attorneys "floated the idea" of dropping the Supreme Court case if prosecutors in Tennessee agreed to life imprisonment without parole, said John Campbell, a Shelby County assistant district attorney. But, besides practical concerns about how such an agreement could be made, he said prosecutors were not interested because of the severity of Cone's crime.


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