Cone v. Bell--and Procedure in Death Penalty Cases

This capital murder/death penalty case illustrates a number of things, the principal one of which is that of the complexity of understanding how state and federal death penalty procedure relate to each other. When the "procedural revolution" in American jurisprudence happened in the early-mid 1960s, one of the concerns was that the excessive emphasis on procedural justice would so bog down the system that procedure itself would be the instrument of injustice. I think that has happened here. So complex are the issues, as I see them, that even the Petition for Certiorari leaves signficant gaps in explanation of the procedure in the case. Hm. Maybe that was calculated. In any case, let me lay out some basic facts of this case.

Facts and Early Decisions

Mr. Cone is a Vietnam War veteran who never was able to "readjust" after returning from Vietnam. He became one of the thousands of those vets who really have been brushed under the rug in our society. It was an unpopular war, we hated the government for keeping us in it, and we took it out on the veterans, most of whom were only doing their patriotic duty. I have seen the continued psychological stress on some veterans due to this war, and I hope you have, too. In any case, Mr. Cone suffers both from PTSD (post-traumatic stress disorder) and a drug addiction. In 1982 a TN jury convicted him of first-degree and felony murder arising from his robbery of a jewelry store and flight from police. He killed two people in the process. His whole defense at trial and sentencing was that the effect of the PTSD and drug addiction diminished his capacity, and thus he couldn't form the mental intent necessary for a conviction of capital murder. His two expert witnesses, a clinicial psychologist and a pharmacologist, testified that he suffered from these conditions (variously called "substance abuse disorder superimposed upon a post-traumatic stress disorder" or "chronic amphetamine psychosis").

The state countered that Mr. Cone wasn't a drug user at all (thus to get over the mental intent hurdle), and that he certainly didn't have a drug problem. The state called its arresting officers and a former girlfriend of Mr. Cone to testify this way. Bolstered by this testimony, the jury sentenced him to death. On direct appeal to the TN Supreme Court, the Court affirmed his conviction and called Mr. Cone's mental impairment through PTSD and drug addiction defense a "tenuous" one at best,

"since neither of the expert witnesses who testified on his behalf had ever seen or heard of him until a few weeks prior to the trial. Neither was a medical doctor or psychiatrist, and neither had purported to treat him as a patient. Their testimony that he lacked mental capactiy was based purely upon his personal recitation to them of his history of military service and drug abuse."

Ok. So far so good (or bad?). In any case, we have a clear record to date. It is now that things get really bad.

On State Post-Conviction Appeal

After direct appeal in death penalty cases, defendants have what is called "collateral" appeal--where a defendant argues in state and then federal court that his constitutional rights were breached either by ineffective assistance of counsel or some kind of newly-discovered evidence or evidence of prosecutorial misconduct. Often part of the post-conviction petition is a Brady claim, where the defense claims that the prosecutor has withheld crucial information from the defense team. Cone's lawyers argued a Brady claim here.

While the petition was pending, the TN Court of Appeals rendered a decision in 1992 which required, under the state public records law, for police and prosecutorial files to be fully disclosed to defendants. When the "Cone file" was turned over to the defense, they noted a number of ways in which exculpatory evidence, from their perspective, was suppressed by the prosecution. For example, the file showed that the police were quite aware that Mr. Cone was a "drug user" and that, in committing the crime in question, he looked "frenzied" and "wild-eyed" and like a man on drugs.

The "Real" Issue in the Case

So, the real issue in this case, which then has taken 15 years and at least four court decisions to muck up, is whether this disclosure of the defense file, as mandated by TN law after 1992, should give Mr. Cone another crack at a sentencing jury. Was the prosecutorial withholding of this kind of information simply a small peccadillo, that really didn't or probably wouldn't have had much of an impact in the case, or was the withholding of information material to the jury's determination?

I wanted to take the time to frame the issue this way because the courts, beginning with the state post-conviction court, framed it in terms of the language of federal habeas corpus law--which they probably had to do but which confuses things mightily. The way the issue was framed in the subsequent judicial proceedings was whether Mr. Cone's claim was "procedurally defaulted" because it was already considered fully by a jury (i.e., they heard testimony about his drug addiction--but just chose not to credit it) or that Mr. Cone had somehow "waived" the issue. The upshot of all the court decisions (and recitation of these would be more complex than telling the tale of negotiations for eliminating the Latin Mass at Vatican II) is that his desire to get a re-sentencing has been denied because the courts have concluded that he had a full opportunity to present his defense. The lingering uncertainty, however, is very strong, since a total of seven judges of the Sixth Circuit dissented from that circuit's denial of en banc consideration of Mr. Cone's federal habeas corpus petition.

Conclusion

This case has so many problems written over it that the best thing the Court could do is to order a resentencing hearing. But, that will probably not happen, for two reasons: first, the case is now more than 25 years old, and the chances of reconstructing things at this stage, with witnesses with unimpaired memories, is slim. Second, the Supreme Court likes to bring "closure" to death penalty cases, and is loath to reopen them, especially because it will embolden other Death Row inmates to plea for reopening their cases. Thus, I see Mr. Cone's case being affirmed, even though justice, in my mind, requires something different.

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