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April 28, 2009

A SCOTUS win for the capital defendant in Cone v. Bell

Though it will not get as much attention as a bunch of four-letter words, the B-ruling in today's Supreme Court double-feature is a win for a capital defendant.  Here are the basics courtesy of SCOTUSblog:

The Court has released the opinion in Cone v. Bell (07-1114). The decision below, which held for the state, is vacated and remanded in a 6-3 opinion by Justice Stevens available here. The Chief Justice filed an opinion concurring in the judgment. Justice Alito filed an opinion concurring in part and dissenting in part.  Justice Thomas filed a dissenting opinion, joined by Justice Scalia.

UPDATE:  C&C has this extensive commentary on the Cone ruling.

April 28, 2009 at 10:35 AM | Permalink


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» Remand in a Quirky Capital Case from Crime and Consequences Blog
The AP reports, "The Supreme Court has thrown out a death sentence for a Tennessee death row inmate who was deprived of key evidence at his trial." Actually, the high court remanded the case of Cone v. Bell to a... [Read More]

Tracked on Apr 28, 2009 12:37:33 PM


Another win for the "death is different" slogan. The federal courts' handling of this case is an embarassment.

Posted by: federalist | Apr 28, 2009 10:41:15 AM

Your angry platitude is an embarrassment, federalist. From the scotuswiki:

Two amicus briefs were also filed in support of certiorari. In the first, Veterans for America wrote “to ensure that the Court understands Petitioner’s Brady claim is a powerful one on the merits.” Specifically, they argued that because the State suppressed “evidence material under any reasonable reading of Brady, there is every reason to think that Cone would obtain relief were he given the opportunity to adjudicate his Brady claim.” In the second amicus brief, a group of former prosecutors argued that the Court should grant certiorari to correct what it characterized as essentially grave prosecutorial misconduct in the withholding of materially exculpatory evidence.

The prosecutors took a gamble that withholding exculpatory evidence would be harmless error. They lost. They should be liable.

Posted by: George | Apr 28, 2009 1:13:38 PM

The moral of this case is simple: prosecutors, DISCLOSE EVERYTHING. It's always the cover-up that bites them.

Posted by: Anon | Apr 28, 2009 1:17:25 PM

"cover-up"? Gimme a break. Didn't Cone know already that he was on drugs? This is a joke. There is zero excuse for the federal courts screwing around with this case for years.

Posted by: federalist | Apr 28, 2009 1:39:22 PM

Federalist- Yes Cone knew he was on drugs. He argued this to the jury. The prosecutor (who was sitting on undisclosed evidence that Cone was on drugs) argued that Cone's story about being on drugs was "baloney." Then the state's attorneys couldn't accurately present the procedural history to the courts below. And you blame the federal courts for screwing around with this case.

Posted by: habeas lawyer | Apr 28, 2009 1:48:52 PM

Of course he knew he was on drugs. That was his theory of defense. Yet the prosecutor withheld evidence which would have supported this defense, and instead argued he wasn't.

I agree with you on one point, however: There is zero excuse for the federal courts screwing around with this case for years. It should have been obvious that a new trial was necessary from the very beginning and all these years of litigation could have been avoided.

Posted by: DEJ | Apr 28, 2009 1:52:58 PM

yes, habeas, I do. First of all, the defense appellate lawyers botched this pretty well by not specifically presenting the Brady claim to state courts. In any other case (and that's shown by the schizophrenic quality of the disposition here--remember, they didn't toss the conviction), the prisoner would lose, and that would be the end of it, but because this is a death case, the normal rules don't apply. Second of all, the prosecution's argument was more geared to (a) he wasn't so intoxicated that he didn't know what he was doing and (b) it shouldn't excuse his actions anyway. The other evidence would have simply buttressed the evidence already in front of the jury that he was high.

Federal courts should no longer have habeas power with respect to death sentences. This case is an outrage.

Posted by: federalist | Apr 28, 2009 2:01:39 PM

Is intoxication a defense, an excuse or a justification, even if it leads to temporary psychosis? In that case, half of all murders involve people who are legally intoxicated, who should all be let off.

Posted by: Supremacy Claus | Apr 28, 2009 5:28:47 PM

One has to note this pretextual lawyer gotcha, in pursuit of generating more lawyer make work. It comes from a conservative court. Political affiliation is trumped by lawyer rent seeking. If the appellate point is presumed, would the outcome have changed?

If he was totally insane, delusional, and believed he was defending himself against UFO inserted angel/devil apparitions messing with his mojo, would it have made a difference in the law if the delusion were from a substance?

Posted by: Supremacy Claus | Apr 28, 2009 5:58:21 PM

In noncapital cases, the people of the state retain the authority to decide whether intoxication will be considered an excuse or a factor in mitigation. See Montana v. Egelhoff, 518 U.S. 37 (1996). In capital cases, the Supreme Court stripped the people of that authority in Lockett v. Ohio, 438 U.S. 586 (1978). Each juror gets to decide whether intoxication is mitigating, along with any other factor the defendant wants to throw against the wall.

Posted by: Kent Scheidegger | Apr 28, 2009 6:11:19 PM

So I can understand:

We are now going to embark on a journey back to 1982:

1) determine intent (mind reading) of a murder. The word, element, is from the catechism and the analysis of mortal sin, a mind reading function of God. Not even the Medieval church claimed man could read minds.

2) We are going to assess the degree of intoxication, its effect on causation of psychosis.

3) We will than analyze whether the intoxication was so extreme as to preclude the formation of intent. Neither intent, nor its formation exist in the physical world. They are part of the catechism and the analysis of mortal sin. Such analysis violates the Establishment Clause by being supernatural, and by originating from a church.

Here is the real intent, if I may be indulged to read the minds of the cult criminals of the SC. Generate $1 million in lawyer make work, using a murderer as a pretext. Rebut my mind reading presumption about the SC. At least, I can count the money costs of this decision. The decision is certainly not to enhance public safety.

When the death penalty has been deterred by its cost, and the people have been deterred from demanding it, the murderers will have total absolute, immunity for all crimes after the first murder. Judges cannot hide a murder behind judge immunity. Their customers, the murderers will be able to.

Posted by: Supremacy Claus | Apr 28, 2009 6:37:59 PM

Fortunately, a jury of 12 citizens gets to decide who lives and who dies, not Mr. Scheidegger, Supremecy Claue, or federalist.

Posted by: anon 14 | Apr 28, 2009 7:15:32 PM

Then the SCOTUS should disapprove Montana.

Posted by: George | Apr 28, 2009 8:17:07 PM

Anon 14: Let me understand more.

The word, remand, means the following, or correct me:

A jury pool will be selected. All those with knowledge will be excluded, for example family members of the defendant, fellow prisoners, girlfriends, psychologists, parents, teachers of the defendants, the drug suppliers. What will remain is a distillate of ignoramuses.

These will be subjected to Broadway productions and fairy tale spinning by competing lawyers. The jury will then be asked to use their gut feeling to come to a verdict. The latter will really choose between the likability of the lawyers, after finding that trying to follow the evidence of 25 years ago is hopeless. If I were the defendant I would demand from the PD office a young, chesty, female lawyer with fumble fingers, repeatedly dropping her pencil and having to bend forward before the jury box and the bench to pick it up. I would demand, no bra, sweetie. I think that No Bra rule is in the Model Rules of Conduct, in the Comments, as part of duty of zealous representation.

Then, this jury will read the mind of an intoxicated criminal in 1980, compare it to a standard of no intent, and find a specific discount in the sentence. This defendant outdrew and eliminated a trained police. A bystander got in the way, and he offed him. This was in the pursuit of a profit making crime, a bank robbery. It was quite a business like crime. There was not a shred of evidence of the slightest impairment.

Is that what is supposed to happen?

I am starting to change my mind. It is possible that the SC should not get arrested, tried and executed for treason against the Constitution. It is possible, they are really psychotic, from the effects of the criminal cult indoctrination of their legal education. They need to be committed to an institution for the criminally insane. They are delusional and dangerous to others.

Posted by: Supremacy Claus | Apr 28, 2009 8:41:39 PM

Does SC's conspiracy theory schtick never get old?

Posted by: exasperated | Apr 29, 2009 3:37:45 AM

Ex: Glad you brought up this opportunity to clarify matters.

This is not a conspiracy theory. It is more nefarious, entrenched, and irremediable. It is a criminal cult enterprise theory. People are indoctrinated, not recruited. They do not even know it. Take out as many "conspirators" as you please, there are a million replacements.

Go back to 10th Grade World History. Perhaps, you were told, the Inquisition was run by the Dominicans, the shock troops of Church orthodoxy. You were never told, they had a business plan. First, every activity of life required a Church ritual and a fee. Merchants were fed up. Then, they declared wealthy people heretics after a pretextual infraction of the infinity of rules. This business plan applied to Jews and Muslims, as well, even after conversion. None of the infinity of rules had religious validity. You were taught the heretic was burned at the stake. You may not have been told, the assets reverted to the Church. It grew in wealth and power to an intolerable level.

Think of the lawyer profession as the New Dominicans. They took, their terminology, their political methods, their business plan. One difference? There is no sovereign for a secular counter-balance. This time around, members of the New Dominicans control the three branches of government and make 99% of substantive policy decisions, mostly to the advantage of the New Dominicans.

They have absolute control of the law school curriculum. Try this brief exercise. Open any law book to any random page, or any appellate decision, or any legal document. Just read down. In 9 of 10 attempts, you will reach a supernatural core doctrine. A bogus, anti-scientific, supernatural, fundamental, legal doctrine, violating the Establishment Clause is in 9 of 10 pages of any random legal utterance. Make a checklist and read brief random passages from anywhere legal: mind reading, future forecasting, fictional character, truth detection by gut feelings, the word, reasonable, which means, in accordance with the New Testament, chain of causation (does not exist). Verify this with a sample of 10 pages. Try a real variety. Include a credit card agreement. A news report of a Supreme Court decision.

The ordinary lawyer is more oppressed and more tightly disciplined by the hierarchy of this cult than the public. The lawyer even hates itself, without really knowing why. It is part of a criminal cult enterprise, with rent seeking as a goal above even the survival of our nation. The lawyer places it above all other personal values, family, country, self interests. The lawyer, with an IQ of 300, failed to spot the supernatural nature of the core doctrines. He failed to spot the process of indoctrination.

Posted by: Supremacy Claus | Apr 29, 2009 6:55:13 AM

sc when you are indicted, you'll sing a different tune. right wing nuts always do.

Posted by: anon | Apr 29, 2009 9:15:59 AM

Anon: On the other hand, I do not wish you to be hurt by a customer. I care about you.

If indicted I would expect the defense attorney to end the case on procedure, and would get very angry if the case reached substance. I would likely fire him, so he does not profit from the trial. I would warn him of the plan at the outset.

If trial were to become necessary, I would hire legal malpractice attorney to terrorize my defense attorney. He would have to move for total e-discovery on the adverse lawyer, and the entire chain of command, on their personal computers, and their work computers. I assume you are talking about the DOJ. It is the world's biggest subscriber and viewer of child porn in the world. There has to be some on every computer. Publish the description of the content to the web, and send fliers to all the lawyer's family and church members.

I would seek to personally destroy the adverse federal thug and his entire unit. I can generate 10 fold defense costs in that unit with a countersuit, no matter how frivolous, and how quickly dismissed. Take down the vile federal thug. I would demand the same get done to the judge after any adverse ruling. I am not facing uncertainty without the personal destruction of the cult criminals. I know those defense costs would exceed the value of the thug to the government, and he would be working elsewhere after a short face saving time. All government employees know this, as they face their personal dooms. I would also parse every utterance and file a separate ethics complaint with the Disciplinary Counsel, during the case.

I have suggested this proactive approach to white collar defense types. They flip out, utter a disclaimer about not giving legal advice, and call it completely unethical. They do not walk away but run away. I try to run after them asking why. Here is why. The federal thug is self-dealing, rent seeking scum. However, he generated the defense lawyer's job. I can be replaced as a client in a minute. If I deter a DOJ Division, take it down, the defense attorney loses his job.

It is an affirmative duty of every innocent party to counterattack the vile cult criminal oppressor. To deter.

I have strongly urged entities to counter-attack, at my expense, rather than to settle, with a corporate compliance program agreement. The latter has been 10 times more expensive than the full amount demanded, even if they had lost everything at trial. Beyond the cost, it was totally oppressive and deterred the business itself, not bogus lawyer gotcha unwarranted regulation.

You may call me a hypocrite for latching onto and riding a tsunami of procedure and gotchas. I will admit that.

Posted by: Supremacy Claus | Apr 29, 2009 5:57:40 PM

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