High court restores Tennessee man's death sentence

 By Jan Crawford Greenburg

May 29, 2002

WASHINGTON -- The Supreme Court on Tuesday reinstated the death sentence of a Tennessee man convicted of murdering an elderly couple, reversing a federal appeals court decision that the man's defense attorney did not adequately represent him during his sentencing proceeding.

In an 8-1 decision, the justices said the appeals court was wrong to set aside the death sentence of Gary Cone, whose lawyer did not call or interview witnesses, make a closing argument or plead for Cone's life at his sentencing hearing.

Also on Tuesday, the court announced it would decide next term whether the 1st Amendment protects a person's right to burn a cross. The case comes from Virginia, where a state court held that burning a cross was a protected form of speech under the Constitution.

The court also declined to hear arguments in a case involving an Atlanta dental hygienist who lost his job after his employer found he was HIV-positive. The hygienist had claimed discrimination, in violation of the Americans with Disabilities Act, but lower courts ruled against him.

In the death penalty case, a federal appeals court ruled that Cone's sentence did not pass constitutional muster because his lawyer did not adequately defend him. It declined to apply standards set out in a 1996 law designed to streamline death penalty appeals, ruling instead that Cone was denied his 6th Amendment right to counsel, in light of his lawyer's failure during the sentencing phase of Cone's trial.

But in the decision by Chief Justice William Rehnquist, the Supreme Court said the appellate court went too far when it rejected a state court decision that had upheld Cone's sentence. The state court decision must prevail, the justices said, because it was neither "contrary to" nor involved "an unreasonable application of clearly established federal law."

Under the 1996 Antiterrorism and Effective Death Penalty Act, federal courts can step in and grant relief in cases such as Cone's only if state courts have relied on the wrong legal principles or have unreasonably applied the law when they reviewed a defendant's claims.

 The Supreme Court said Tuesday that the state court, which rejected Cone's arguments, correctly identified the controlling legal principles and applied them in a reasonable way.

 In siding with the state court, the justices noted that Cone's lawyer was faced with the "formidable task" of defending a man who committed a brutal crime.

 His lawyer, who has since committed suicide, argued at trial that Cone was not guilty by reason of insanity, but declined to call witnesses during the sentencing hearing.

 The Supreme Court agreed with the state court that the defense attorney had sound reasons for doing that, in light of testimony elicited earlier in the trial.

 It also said the state court was not unreasonable when it said the lawyer's decision to waive closing argument was a "tactical" choice.

 Justice John Paul Stevens dissented, arguing that the federal appeals court correctly found that Cone was denied effective representation due to his defense lawyer's "overwhelming failure" in the penalty phase.

Court Refuses To Intervene In Death Penalty Case

By Charles Lane

May 29, 2002

For the second time since its current term began in October, the Supreme Court has considered and rejected a death row inmate's effort to have his sentence overturned because of alleged bad lawyering.

By a vote of 8 to 1, the court ruled yesterday that Tennessee may execute Gary Bradford Cone, a convicted double murderer, even though his defense attorney did not make a final appeal for life imprisonment in the sentencing phase of his 1982 trial.

Overturning a federal appeals court's ruling that the lawyer had abdicated his responsibility to function as an adversary to the state, the court, in an opinion by Chief Justice William H. Rehnquist, held that the lawyer's silence was a defensible strategic decision intended to preclude a devastating prosecution rebuttal -- not a denial of the defendant's constitutional right to effective assistance of counsel.

Concerns over the legal representation available to capital defendants have fueled the national debate over the fairness and accuracy of state death penalty procedures. Such concerns were cited in a recent report by an Illinois commission recommending changes in that state's death penalty system.

And two justices of the Supreme Court have recently spoken out on the issue.

Justice Ruth Bader Ginsburg told a Washington audience last year that she has "yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial."

 And Justice Sandra Day O'Connor told a group of Minnesota lawyers that it may be "time to look at minimum standards for appointed counsel in death cases."

 But these observations have not yet translated into majority opinions at the court, where the justices must apply precedents that define constitutionally defective legal assistance to specific cases.

 In a case decided earlier this term, Mickens v. Taylor, the court ruled, by a vote of 5 to 4, that a Virginia death row inmate's defense had not necessarily been harmed as a result of the fact that his attorney had previously represented the victim -- a fact that the lawyer failed to disclose and that the trial judge might well have known but failed to discover.

 O'Connor voted in the majority in that case, as she did yesterday. Ginsburg dissented, along with justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

Yesterday, however, the only dissenter was Stevens. Taking issue with the majority's "uncritical analysis" of the lawyer's proffered reasons for not making a closing argument, he said that the jury had been deprived of information that might have made them feel more sympathetic to Cone, a college graduate and Bronze Star winner in Vietnam who turned to drugs and crime after his return from the war.

This, Stevens wrote, was "nothing short of incredible."