In Cone v. Bell, released yesterday, the U.S. Supreme Court reversed a death sentence based on Brady violations by the prosecutor. Cone asserted an insanity defense at trial, with testimony that he suffered from post-traumatic stress disorder resulting from his service in Vietnam and amphetamine-induced psychosis resulting from extended and heavy use of drugs. The prosecutor argued that Cone knew the difference between right and wrong, introduced testimony that Cone was not a drug user, and called Cone’s defense “baloney.” Years later, Cone’s attorneys discovered that the prosecutor’s file contained numerous undisclosed documents that contradicted the prosecutor’s statements and witnesses:
Among the undisclosed documents Cone discovered were statements from witnesses who had seen him several daysbefore and several days after the murders. The witnesses described Cone’s appearance as “wild eyed,” App. 50, and his behavior as “real weird,” id., at 49. One witness affirmed that Cone had appeared “to be drunk or high.” Ibid. The file also contained a police report describingCone’s arrest in Florida following the murders. In that report, a police officer described Cone looking around “in afrenzied manner,” and “walking in [an] agitated manner” prior to his apprehension. Id., at 53. Multiple police bulletins describing Cone as a “drug user” and a “heavy drug user” were also among the undisclosed evidence. See id., at 55–59.
The documents included impeachment evidence from which the jury could have concluded that two of the state’s witnesses, a woman who had lived with Cone who testified that he was not a drug user, and an officer who testified that Cone was not a drug user, were lying on the stand.
What the Court did: The Court begins the opinion with strong language about due process and the duties of a prosecutor to seek justice and not convictions:
The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure “that ‘justice shall be done’” in all criminal prosecutions. United States
v. Agurs, 427 U. S. 97, 111 (1976) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In Brady v. Mary-land, 373 U. S. 83 (1963), we held that when a State sup-presses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant’s right to due process, “irrespective of the good faith or bad faith of the prosecution.” Id., at 87.
The Court holds that Cone’s claim is not procedurally barred. A federal habeas claim is barred if the state courts were not first given the opportunity to consider the federal claim. In this case, the state courts twice considered Cone’s claims and, for various reasons some of which were not supported by the record, ruled against him. Therefore his claims were not barred and the state had ample opportunity to decide his claims.
The Court then holds that the withheld evidence is material to the question of punishment, but not of guilt. Despite the fact that Cone’s defense was insanity based on mental illness induced by his excessive drug use, the Court holds that the evidence of guilt was overwhelming and the withheld evidence would not have made a difference. But, the Court holds that it might have made a difference as to whether Cone was given the death penalty, and therefore the case is remanded to the district court to consider the merits of the Brady violation claim (which is not procedurally barred, which was the district court’s reasoning for refusing to hear the claim).
What the Court did not do: Despite it’s bold opening paragraph, the opinion’s tone sounded like the prosecutor’s ethical violations were no big deal. This is just another legal issue that we must analyze to determine if there is prejudice to the defendant or not (I disagree with the Court’s analysis as to prejudice, as the evidence of excessive drug use is very relevant to his defense of drug-induced psychosis).
It would be nice to hear the Court say, this case is riddled with unethical conduct by state’s attorneys, and the extent of that misconduct and the resulting denial of due process demands reversal of this conviction. We will no longer stand idle while prosecutors pursue convictions at the expense of justice and our system is subverted by unethical conduct. If a prosecutor lies to the court and to a jury, if a prosecutor does not produce exculpatory evidence in violation of our prior opinions, court rules, and ethics rules, if an appellate state’s attorney argues inconsistent and contradictory theories depending on which court they are before, we will reverse the conviction and strongly recommend discipline by their state bar authorities.
All of these actions by state’s attorneys were before the Court, noted by the Court, and accepted by the Court as true. The issue framed on appeal was whether Cone’s habeas claim was procedurally barred, but the Court could have gone much further in their analysis of this case.