For the third time in six years, the United States Supreme Court has agreed to review the case of a Tennessee criminal who was convicted and sentenced to death in 1982 for the brutal murder of an elderly Memphis couple. At issue in the case of Cone v. Bell is whether a marginal claim of error, not properly presented to the state courts and denied by the federal courts, justifies further delay of the murderer’s sentence.
The California-based Criminal Justice Legal Foundation is encouraging a decision to deny further review of Cone’s claim. “This case provides another example of unwarranted, court-created delay of a long overdue sentence for an unquestionably guilty murderer. We are hopeful that the Supreme Court will put an end to this injustice,” said Foundation Legal Director Kent Scheidegger.
The case involves the 1982 conviction of habitual criminal Gary Cone for the beating deaths of an elderly Memphis couple during a two-day crime spree which began on August 9 of that year. On that day, police received a call from a jewelry store manager who reported that Cone had robbed him of $112,000 in merchandise. From the manager’s description, police spotted Cone in his car and began to follow him. A high-speed chase ensued through midtown Memphis and into a residential neighborhood, where Cone abandoned his car. As he ran, Cone shot one of the officers and a bystander. He then stole a car, forcing the driver out at gunpoint, and attempted to shoot him as he fled. The next day, Cone attempted to forcibly enter the home of an elderly woman who locked him out and called the police. A short time later, Cone broke into the nearby home of a 93-year-old man and his 79-year-old wife. He beat them to death with a blunt instrument before ransacking the house. Cone was arrested two days later in Florida. At his trial, prosecutors introduced overwhelming evidence of Cone’s guilt. The defense attorney argued that his client was temporarily insane at the time of the murders. Family members were called to verify Cone’s claims of mental incapacity.
After the jury returned a guilty verdict, Cone’s defense attorney chose not to call the family members back during the sentencing phase because their testimony would be contradictory and not helpful. He decided instead to remind the jury of Cone’s mental instability and plead for a life sentence. He also won a ruling to prevent introduction of death scene photographs of the victims and elicited testimony from a prosecution witness on cross-examination that Cone had been honorably discharged from military service. After his conviction and death sentence were upheld on direct appeal, Cone raised several claims on habeas corpus, including one alleging that his trial attorney was ineffective. This claim was extensively reviewed, and in its decision, the Tennessee Court of Criminal Appeals noted, “No stone was left unturned in the preparation of the appellant’s defense. Trial counsel was very conscientious in representing the appellant and placed much thought and effort into the tactical aspects of this case.”
Cone then filed a second state habeas corpus petition, presenting his earlier claims and introducing a new one alleging that the prosecution had improperly withheld evidence of his drug use. The trial judge rejected this new claim as well as Cone’s other claims. In 1997, Cone raised the prosecutor misconduct and ineffective assistance of counsel claims, along with many others, on federal habeas corpus. The Federal District Court dismissed the first as defaulted by state rules and the second for failing to demonstrate that his attorney’s performance prejudiced his case.
In 2001, the Federal Sixth Circuit Court of Appeals unanimously agreed with the lower court on the prosecutor misconduct claim, but reversed on the ineffective assistance of counsel claim, ruling that the prejudice test did not apply. The following year, in a decision CJLF helped win, the U. S. Supreme Court overturned the lower court decision and returned the case to the Court of Appeals.
In 2004, Cone won another ruling to overturn his sentence from the same Sixth Circuit panel, this time because an aggravating circumstance considered by the jury at his sentencing hearing was declared impermissibly vague. This holding was so clearly wrong that the Supreme Court overturned it with a unanimous summary reversal. Last year, the Sixth Circuit finally rejected Cone’s claim that his attorney failed to properly represent him, and it again rejected his claim of prosecutor misconduct as both procedurally defaulted and meritless. Earlier this year, after the U. S. Supreme Court agreed to consider the prosecutor misconduct claim in Cone’s appeal, CJLF rejoined the case. In a scholarly amicus curiae (friend of the court) brief, the Foundation argues that while Cone’s claim of prosecutor misconduct was properly defaulted by the Tennessee courts for being presented in violation of state rules, it was also reviewed and denied on the merits by the Federal District Court, and twice by the Federal Court of Appeals. CJLF is asking the Court to either uphold the lower court decision or announce that no further review is necessary.
