Dissenting from a U.S. Court of Appeals deci­sion deny­ing relief to Gary Cone, Judge Merritt sharply crit­i­cized the Tennessee Attorney General for ​“fal­si­fi­ca­tion” of the record, and he referred to the state’s judi­cial sys­tem as ​“bro­ken” and ​“inat­ten­tive.” Cone had been grant­ed relief on two oth­er occa­sions by the same Sixth Circuit, but those deci­sions were reversed by the U.S. Supreme Court. In the present case, Cone claimed that sig­nif­i­cant mit­i­gat­ing evi­dence had been with­held by the state in vio­la­tion of the U.S. Constitution. Judge Merritt wrote:

The fail­ures of the state and fed­er­al judi­cia­ries to con­sid­er the claim (of with­held evi­dence) prop­er­ly was caused by the mis­rep­re­sen­ta­tions of the record in the case by the Tennessee Attorney General and his appel­late staff. The major­i­ty does not acknowl­edge, ana­lyze or seek to pro­vide a rem­e­dy for the com­plete fal­si­fi­ca­tion of the pro­ce­dur­al record in this case by the Tennessee Attorney General’s appel­late coun­sel con­cern­ing the State’s pro­ce­dur­al default defense to the Brady claim.
…
Our Court’s ear­li­er mis­tak­en rul­ing that the doc­trine of pro­ce­dur­al default barred the Brady claim was based on false state­ments of the record by the Tennessee Attorney General’s office in its brief in this Court and by incor­rect state­ments from the record by two Tennessee courts. In its brief before this Court, the State argues that the Brady claim ​“is clear­ly pro­ce­du­ral­ly default­ed” because ​“Cone’s Brady claims were sim­ply nev­er raised in the state court.” This ​“sim­ply nev­er raised” state­ment can itself only be char­ac­ter­ized as a delib­er­ate false­hood.

If the inat­ten­tive and unfo­cused treat­ment of a cap­i­tal defendant’s Brady-mit­i­ga­tion claim in the Memphis tri­al court shows a bro­ken judi­cial sys­tem unable to cope with its respon­si­bil­i­ties in cap­i­tal lit­i­ga­tion, the treat­ment of the claim on review in the Tennessee Court of Criminal Appeals was worse. At least Judge Williams did not exco­ri­ate pro bono defense lawyers for dili­gent­ly pur­su­ing their duty to represent Cone.

(Cone v. Bell, No. 99 – 5279, 6th Cir. (June 19, 2007) (Merritt, J., dis­sent­ing) (empha­sis added)). See Supreme Court (2005 and 2002 deci­sions) and Arbitrariness.

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