The U.S. Supreme Court agreed on June 24 to hear two death penal­ty cas­es, both from Tennessee. The first case, Cone v. Bell, No. 07 – 1114, focus­es on whether fed­er­al courts can con­sid­er issues that state courts dis­missed on state pro­ce­dur­al grounds. The peti­tion­er, Gary Cone, had claimed that his use of drugs mit­i­gat­ed his guilt in the under­ly­ing mur­der of which he was accused. The pros­e­cu­tion at tri­al denied that there was any evi­dence of the defen­dan­t’s drug use, and Cone was sen­tenced to death. It was shown lat­er that the dis­trict attorney’s files con­tained evi­dence con­firm­ing Cone’s exten­sive drug prob­lem, and Cone main­tains that such evi­dence should have been released to the defense in dis­cov­ery. F.B.I. files also showed evi­dence of Cone’s drug use. However, when Cone request­ed a new tri­al and tried to present this new evi­dence to the Tennessee courts on appeal, the courts ruled that he had made the claim of with­held evi­dence ear­li­er and lost. Hence, his present claim was dis­missed as duplica­tive, rather than being reviewed on the basis of the new evi­dence he was pre­sent­ing.

When the U.S. Court of Appeals for the Sixth Circuit was pre­sent­ed with Cone’s claim through a habeas cor­pus peti­tion, they denied it because the mat­ter had been resolved in Tennessee under state pro­ce­dur­al law. When Cone request­ed a rehear­ing en banc by the Sixth Circuit, he was denied, but sev­en judges dis­sent­ed. Judge Gilbert Merritt, writ­ing for the dis­senters, said, “[W]e should not err again by fail­ing to insure that the State’s pros­e­cu­to­r­i­al mis­con­duct in con­ceal­ing excul­pa­to­ry evi­dence is con­sid­ered on the mer­its.” Cone had pre­vi­ous­ly been grant­ed relief by the Sixth Circuit on two oth­er issues, but both of those rul­ings were over­turned by the U.S. Supreme Court, mak­ing this the third time that the High Court will review Cone’s case.

The sec­ond case, Harbison v. Bell, No. 07 – 8521, asks whether a fed­er­al law that pro­vides lawyers to indi­gent state death row inmates for parts of their appeal guar­an­tees them the con­tin­u­a­tion of that rep­re­sen­ta­tion through the state clemen­cy process. 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.” Federal appeals courts have been divid­ed over the inter­pre­ta­tion of the law, with one side say­ing that the law applies only to fed­er­al clemen­cy pro­ceed­ings.
(A. Liptak, ​“Death Row Inmate’s Case Gets 3rd Hearing,” New York Times, June 24, 2008). See Supreme Court and Clemency. See also Scotus.blog for a dis­cus­sion of these cas­es and links to briefs.

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