Five years ago, CJLF submitted a brief in Bell v. Cone, 535 U.S. 685 (2002), stating:

On August 10, 1980, Gary Cone murdered Shipley O. Todd, age 93, and his wife Cleopatra Todd, age 79. State v. Cone, 665 S. W. 2d 87, 89-90 (Tenn. 1984). Over twenty-one years later, justice remains on hold, even though Cone’s identity as the perpetrator has never been in doubt. See id., at 90.

Justice is still on hold, but the Sixth Circuit decided Cone's case for the third time yesterday, finally getting it right. The first time they were reversed 8-1, cited above. The second time, they were reversed summarily, without dissent.

On the third round, Judge Merritt dissents, wanting to reopen a claim the court has already rejected, i.e., that the state withheld evidence of Cone's own drug use. Withheld evidence claims are particularly strange when the underlying fact to be proved involves the defendant himself, not the crime, and the defendant is well aware of the fact. As the majority notes, in this case the jury had ample evidence that Cone was a drug user. They just didn't find it all that mitigating.

This case is a perfect example of taking way too long and spending way too much in resources litigating issues that have nothing to do with guilt. Perhaps the end is finally near.