High Court Hears Appeal From Tennessee Killer

A decorated Vietnam War veteran who committed a horrific crime was back at the Supreme Court for a third time on Tuesday. Twice before, the justices have rejected his legal arguments, but armed with new evidence of prosecutorial misconduct, defendant Gary Cone looked like he might win a new examination of his trial.

Twenty-eight years ago, Cone forced his way into the home of an elderly Memphis couple and beat them to death.

At trial, Cone's only defense was insanity. He argued that, as a result of Vietnam War-related post-traumatic stress disorder, he had become a drug abuser and had committed the murders while in the throes of an amphetamine psychosis. The prosecution portrayed him as a "pre-mediated, cool, deliberate killer." The Tennessee Supreme Court upheld his death sentence, saying there was no solid evidence that Cone even used drugs at all.

Years later, when the prosecution's case files were opened under a new state law, defense lawyers discovered the district attorney had in his possession evidence from the police and FBI that Cone was a drug abuser, and statements from law enforcement and other witnesses suggesting that Cone appeared to be in a drugged state at the time of the crime.

Cone's lawyers filed a new appeal, asserting that the prosecutor had fatally tainted the trial by improperly withholding evidence favorable to the defense. The state courts, however, rejected the appeal, ruling, erroneously as it turned out, that they had already decided this issue.

In the Supreme Court on Tuesday, the question was whether any court should hold a hearing to determine if Cone had been denied a fair trial.

Lawyer Tom Goldstein, representing Cone, faced immediate skepticism from Justice Antonin Scalia.

Scalia, impatient: How long has this case been going on ... 28 years?

Justice Anthony Kennedy: When did you get access to the prosecution files?

Answer: Twelve years after the crime. But because the state courts believed wrongly that the issue had already been decided, the whole thing went off the rails.

Justice John Paul Stevens: Do you think the prosecutor deliberately suppressed the evidence, or negligently?

Answer: Deliberately. They knew our defense was insanity and it was our only argument in mitigation of the death penalty.

Representing the state of Tennessee, Associate Deputy Attorney General Jennifer Smith faced an increasingly angry set of justices.

When Stevens asked Smith if she agreed the evidence was deliberately suppressed, Smith dodged the question. Stevens said it seemed very difficult to assume that the prosecutor thought it really was not important evidence.

Justice Stephen Breyer, his voice rising, pointed to the defense contention that the trial revolved around whether Cone was suffering from PTSD and amphetamine psychosis. The defense had two expert witnesses who said that Cone was in very bad shape, Breyer pointed out. On cross-examination, the prosecutor got both witnesses to admit that they were basing their testimony on what Cone told them about his drug use.

The prosecutor said that it was baloney, Breyer noted, when, in fact, in his files there was evidence of an all-points police bulletin saying Cone was a dangerous drug user, a similar FBI bulletin and three witnesses who, on the day of the crime, also described Cone's behavior as frenzied. And, Breyer asked, a trained lawyer for the government just overlooked this evidence?

Kennedy: Do you think the prosecutor had an ethical duty to turn over this material?

Smith fudged.

Kennedy: It's a simple question: yes or no.

Answer: No.

Kennedy observed that the prosecution is required to turn over any information that tends to be favorable to the defense.

Justice David Souter, his teeth all but grinding: You don't think it would be favorable to the defendant — getting the evidence that Justice Breyer summarized a moment ago?

Answer: No, sir, I do not.

Souter: Then, I will be candid with you. I believe you have just made a statement to me that is utterly irrational.

Breyer: There's another part of this case that equally bothers me. The state has taken absolutely inconsistent positions on appeal. First, they told the courts that this issue had been decided and then they told the courts that it wasn't decided, but the defendant waived his right to raise the issue.

Answer: We have confessed that we made an error.

Alito: So if the Tennessee courts made an erroneous ruling based on your claim, shouldn't we send it back for re-examination?

By the end of the argument, that seemed to be where the court was heading: to send the case back to the state courts.

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