Killer's Case Before Supreme Court For A Third Time

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The Supreme Court hears arguments Tuesday in the case of a man convicted of murder in Tennessee. He wants to reopen the conviction or at least the sentence of death, because prosecutors allegedly hid evidence that supported his defense. State courts have said he doesn't have the right to present those arguments.


This is Morning Edition from NPR News. I'm Renee Montagne.


And I'm Steve Inskeep. Good morning. A convicted killer is back in the Supreme Court for the third time today. He's seeking to overturn his conviction, or at least his death sentence. Twice before, the Supreme Court has ruled that Gary Cone can be sentenced to die. At issue this time is whether evidence that the prosecution concealed justifies a new review by the courts. It was evidence favorable to the defense. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: Gary Cone, a decorated Vietnam veteran, committed a horrific crime 28 years ago. After robbing a jewelry store and shooting a policeman, he forced his way into the Memphis home of 93-year-old Shipley Todd and his wife, ransacked their home for money, and beat them to death. Eventually captured, Cone never disputed killing the couple.

At trial, his only defense was that he'd been in the throes of an amphetamine psychosis, literally driven crazy by post-traumatic stress disorder and serious drug abuse. The prosecution called that claim baloney and portrayed Cone as, quote, a premeditated, cool, deliberate killer. Cone was convicted and sentenced to death. The Tennessee Supreme Court rejected his appeal, saying there was no solid evidence that Cone even used drugs at all.

Years later, however, when the prosecution's case files became accessible under a new state law, defense lawyers discovered that the district attorney had considerable evidence of Cone's drug use, plus evidence of his apparent drugged state at the time of the crime, and that the D.A. had not turned that exculpatory evidence over to the defense, as required by law. Cone's lawyers then brought a new constitutional challenge to his conviction, charging that the prosecutor's conduct fatally tainted the trial and sentencing. The Tennessee courts, however, refused to let Cone present his argument at all, ruling erroneously, as it turns out, that the state courts had already ruled on that question.

When the case reached a federal appeals court, that court ruled that its hands were tied, that it was powerless to order review of the state court ruling. Seven judges dissented, saying that Tennessee has no right to block a federal court from considering whether suppressed evidence would have made a difference to the jury.

Cone appealed to the U.S. Supreme Court, where the central question essentially is, who gets the last word? Cone's Supreme Court lawyer, Tom Goldstein, contends that the suppressed evidence would have made a difference to the jury, especially on the question of the death sentence, and that some court should have to evaluate the evidence before Cone is executed.

Mr. TOM GOLDSTEIN (Defense Lawyer): If this evidence hadn't been hidden from the jury, the jurors would have known so much more about Gary Cone as a human being that was so much more sympathetic, that he had literally been driven crazy by his service in Vietnam and unbelievably heavy drug use, that he didn't consciously make a decision to be a murderer and that he wasn't an evil person. The jury would not, we think, have made that incredibly difficult decision to end his life.

TOTENBERG: Lawyers for the state of Tennessee declined to be interviewed for this broadcast. In the years of litigation over this matter, the state has changed its argument a half-dozen times. In this brief, the state says Cone's lawyers forfeited the claim of prosecutorial misconduct long ago by failing to adequately explain it in state court. Moreover, they say that the claim is a loser, that the jury would have reached the same conclusion even if it had known about the police and FBI records attesting to Cone's drug abuse and the police observations of him as wild-eyed and frenzied at the time of the crime.

Indeed, after the Supreme Court agreed to hear Gary Cone's appeal this year, the state attorney general refused a defense offer to drop its Supreme Court challenge if the state would abandon the death penalty and just leave Cone in prison for life. Nina Totenberg, NPR News, Washington.

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