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Why Did We Take This Case? Part 2

| 1 Comment
For the second time in less than a month, the U.S. Supreme Court heard argument in a habeas petition by a death-row inmate and immediately questioned why it took the case at all. Previously, as noted here, the Court dumped the case of Bell v. Kelly, deciding it shouldn't have taken it.

The case of Cone v. Bell came before the high court for the third time. See Bell v. Cone, 535 U.S. 685 (2002); Bell v. Cone, 543 U.S. 447 (2005). This time, the case involves a claim that the prosecution failed to disclose evidence in its possession at the time of trial tending to confirm the defendant's claim that he was on drugs. The rule of Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose material exculpatory information, whether on guilt or penalty, but deciding what is material has always been slippery.

Tom Goldstein, for the petitioner, began by noting "two things I think are uncontested." Chief Justice Roberts immediately pounced.

There is also a third thing that's uncontested, which is there is no Brady claim on the merits. That's not at all included in your question presented. The district court and the court of appeals concluded that there was no Brady violation on the merits. I don't know what would happen if we sent this case back. They would conclude it again.

Compare CJLF Brief at 30.
One of the difficulties in this case is figuring out exactly what the state courts decided when Cone's state habeas counsel first brought up the nondisclosure of evidence. That confusion is due, in large part, to the scattershot briefing of habeas counsel. This claim is buried in a host of claims, and it isn't even made as a straightforward Brady claim. When counsel appealed the denial of his successive petition to the state appellate court, the brief never mentioned the defects that present counsel now complains of -- that the state trial court misclassified the claim as previously raised rather than defaulted and that he had cause for default in that the evidence had only recently become available. To find these issues, the appellate court would have had to do counsel's job for him. Justice Alito was keen on this point. See pp. 15-16.

In its latest (third) decision of the case, the Sixth Circuit said that it didn't really need to unravel the Gordian knot, because the Brady claim is meritless anyway. That was the point Chief Justice Roberts made out of the gate, and Justice Ginsburg also notes it at page 11. She also is not too impressed with the "I was stoned" defense on the merits.  See pp. 27-28. She wasn't in Montana v. Egelhoff, 518 U.S. 37 (1996), either, a case where she provided vote number five to reinstate the conviction of a drunk murderer.

During the argument of Jennifer Smith, for the state, we get more of an idea why the Court took the case. Justices Stevens, Souter, and Breyer apparently think this drug-use evidence is very important, and they are seriously ticked at the trial prosecutor for what they believe to be an intentional suppression of evidence, as opposed to the more routine Brady claim of mere neglect.

On page 34, Justice Souter asks about materiality.

You believe that the materiality judgment is yours to make, the State's to make as sort of a gate keeping measure? Isn't the materiality an issue for the fact finder?

Yes, Justice Souter, a threshold determination of materiality by the prosecutor in deciding whether disclosure is required is indeed the law, at least to date. See United States v. Agurs, 427 U.S. 97, 107-108 (1976)

On page 53, Justice Kennedy oddly asks if Cone is in solitary confinement, even though that is admittedly irrelevant to the case. Death row inmates are not generally in solitary, absent some special reason for them to be, and when Goldstein returns for rebuttal he confirms that Cone is not. The question may be an indication of a belief that Cone has somehow gotten a raw deal here. The other side is that he has fended off execution for a particularly brutal crime for far longer than he should have been able to, a point Justice Scalia brings up at pages 9-10.

I count four votes for the state and three for the murderer. Justices Kennedy and Ginsburg are too close to call. Stay tuned.

1 Comment

I must be missing something.

The "Brady claim" is (a) the cops were of the belief that Cone was an out of control druggie before the murder, and (b) the cops had witness accounts that Cone was acting like an out of control druggie after the murder, and (c) the cops failed to remind Cone and his attorneys that Cone was an out of control druggie before and after the murder, and (d) because the cops failed to remind team Cone that Cone was an out of control druggie, Cone and his attorneys were unable to mitigate the murder by showing Cone was an out of control druggie.

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