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.