Death Row Inmate's Case Gets 3rd Hearing

The Supreme Court agreed on Monday to have a 3rd look at the case of a death row inmate in Tennessee, this time to consider whether he has forfeited the opportunity to argue that prosecutors withheld evidence important to his defense.

In its two earlier decisions, the Supreme Court reversed rulings from the federal appeals court in Cincinnati that had favored the inmate, Gary B. Cone. This time, the appeals court, the United States Court of Appeals for the Sixth Circuit, ruled for the prosecution, over the dissents of 7 judges.

Mr. Cone, a decorated Vietnam War veteran, killed Shipley Todd, 93, and his wife, Cleopatra, 79, in their Memphis home at the end of a 2-day crime spree in 1980. His only defense was that he had been in the throes of an amphetamine psychosis.

"This proved to be a tenuous defense, at best," the Tennessee Supreme Court said in affirming Mr. Cone's conviction and death sentence. There was no solid evidence, the court said, that Mr. Cone was even a drug user.

Indeed, a prosecutor called Mr. Cone's claim that he was a drug addict "baloney." Mr. Cone, the prosecutor said, was instead "a calm, cool professional robber."

It later emerged, however, that the district attorney's files contained contrary evidence that had not been provided to Mr. Cone's lawyers. Police reports had called Mr. Cone a heavy drug user and said he looked frenzied and wild-eyed before and after his crimes. The Federal Bureau of Investigation's files, disclosed still later, said Mr. Cone had been caught with amphetamines while in prison.

Tennessee state courts rejected challenges based on the new evidence, mistakenly saying that they had already been considered and denied.

The central issue in the case, Cone v. Bell, No. 07-1114, is whether and when federal courts are free to reconsider such state court rulings. Dissenting from a ruling last year against Mr. Cone by a 3-judge panel of the Sixth Circuit, Judge Gilbert S. Merritt wrote that Mr. Cone deserved to have at least one court consider the impact of the new evidence. "No court, state or federal, has as yet reviewed the claim on the merits," Judge Merritt wrote.

3 months later, dissenting on behalf of himself and 6 other judges from the full Sixth Circuit’s decision not to revisit the case, Judge Merritt wrote: "Having been twice reversed in the Supreme Court, we should not err again by failing to insure that the State's prosecutorial misconduct in concealing exculpatory evidence is considered on the merits."

The Supreme Court also agreed on Monday to hear an appeal from another Tennessee death row inmate, to resolve an issue that has divided federal appeals courts: Must the federal government provide lawyers to poor people on death row seeking clemency?

The case, Harbison v. Bell, No. 07-8521, turns on the proper interpretation of a federal law that provides lawyers to indigent death row inmates convicted in state court who challenge their death sentences in federal court. The law, part of the Terrorist Death Penalty Enhancement Act of 2005, says that such lawyers are to represent their clients in "all available post-conviction process," including "proceedings for executive or other clemency."

The solicitor general's office, representing the federal government, had urged the Supreme Court to hear the case to resolve the conflict among the appeals courts but said the law applied only to federal proceedings.

The Supreme Court also agreed on Monday to hear a third criminal case, this one concerning whether a passenger in a car stopped for a traffic infraction may be subjected to a pat-down search. A Tucson police officer testified that she had searched a passenger, Lemon M. Johnson, because he was wearing gang colors and seemed dangerous, not because he was suspected of having committed a crime.

The search yielded a gun and marijuana. An Arizona appeals court overturned Mr. Johnson's conviction, saying the evidence against him should have been suppressed because the search was unconstitutional.

The case, Arizona v. Johnson, No. 07-1122, will give the court an opportunity to refine its already elaborate jurisprudence on the Fourth Amendment's protections against unreasonable searches and seizures to people in cars.

(source: New York Times)