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.