Argument Recap: Cone v. Bell

Stanford student Josh Friedman discusses oral argument in Cone v. Bell.  Please note that Josh worked on the merits briefing for petitioner as a summer associate at Howe & Russell.

Foreshadowing the course of the argument, Mr. Cones lead counsel, Thomas C. Goldstein, was just three sentences into his opening when Chief Justice Roberts turned the Courts attention to what would be the central issue of the dayspecifically, whether Cones petition for certiorari properly presented a merits review of Cones alleged Brady claim. Indeed, throughout the argument Mr. Goldstein fielded questions centered around the language of the original petition for certiorari and the cases long and complex procedural history. Throughout the discussion, it was clear that among the litigants and Justices there was a common ground, and that is its time to bring this all to a close.

From the start, the Court seemed determined to address the specific remedy sought by petitioner Cone. Mr. Goldstein did not state explicitly whether the Court had to reach the Brady claim in order to end this dispute. Instead, responding to a question from Justice Alito whether Cone was asking the Court to reverse on the procedural default issue and remand the case, Mr. Goldstein answered affirmatively, explaining that if the Court believes that the Sixth Circuit has reached the merits, then this Court should address . . . the undefended . .. legal errors in its assessment of the merits.

Focus soon shifted from the proper remedy to the claims Mr. Cone raised below. Justice Alito and Justice Scalia expressed concern that in light of the large number of claims51, by Justice Ginsburgs countit would only be possible to give what Justice Scalia characterized as a a lick and a promise to at least a few. Mr. Goldstein agreed, but explained that the Brady claim was not merely tucked away among 50 other claims: The Brady claim was point 3 . . . my point is not so that the State, you know, inexplicably behaved horribly . . . . What Im saying here, though, is that the petitioner right away presented what is a very serious Brady claim to the State courts. Cone then didnt abandon [his Brady claim]; he fully presented it; and what he wants is one shot. Mr. Goldstein emphasized that in light of inconsistent State court reasoning and passing observations by the Sixth Circuit, Mr. Cone has never received that opportunity.

Speaking on behalf of the State of Tennessee, Deputy Attorney General Jennifer L. Smith began her argument by disputing that Mr. Cone had never received resolution on his Brady claim. To the contrary, she explained, both the district court and the Sixth Circuit now have twice . . . rejected Cones Brady claim on the merits. Justice Stevens, voicing his colleagues earlier concern as to the proper scope of the question presented, engaged Ms. Smith on the merits of the Brady claim almost immediately. Pointedly, he asked, Do you agree that the evidence shows that the evidence was deliberately suppressed? Ms. Smith conceded that neither the district court nor the Sixth Circuit had answered that question explicitly, but noted, there is at least a suggestion in the record that some of the evidence on which Petitioner is relying at this point wasnt actually suppressed. Justice Breyer spoke next, wondering how the Court should understand the failure to turn over the information. Perhaps, he asked, it was overlooked by accident? Justice Kennedy inquired whether it was possible the evidence was simply immaterial, which led the Court into a discussion with Ms. Smith about whether thepProsecution had an ethical obligation to turn over the disputed material.

The arguments most dramatic moment came shortly thereafter, when Justice Souter asked if the evidence would have been favorable to Mr. Cone. Ms. Smith replied, I think it added no more thanthan what was already before the jury, and added that the evidence would not have a tendency to favor the defendant. Ending their colloquy, Justice Souter responded, I will be candid with you that I simply cannot follow your argument because I believe you just made a statement to me that is utterly irrational.

Shortly thereafter, the Courts attention turned from the relevance and favorability of the Brady evidence to a series of questions about the grounds on which State courts decided the Brady claim. She explained that, in her estimation, until 2007 the lower courts proceeded as though the Brady claim had been waived. She continued that the recent suggestion that the courts thought the issue was previously determined stemmed only from a red herring found in a dissenting opinion. And, in regard to the States representation to the Court, Ms. Smith argued that Tennessee has consistently maintained . . . that the Brady claim was either defaulted or waived. Prompted by Justice Ginsburg, Ms. Smith set forth the States theory of how the current situation had arisen: the bottom line is that [Cone] failed to demonstrate to the State courts why he . . . was properly before the court to begin with. She continued, [I]f he had a legitimate claim, he certainly didnt highlight it as such.

At the close of her argument, the Court returned once again to the merits of the Brady argument itself. Ms. Smith took issue with Cones argument that the lower courts had not properly analyzed the Brady material under a cumulative approach, as required by Kyles v. Whitney. She conceded, however, that the prosecutor overstated his case on one pointspecifically, in regards to the extent and ramifications of Cones drug use. By the States estimation, however, the question of whether he was a drug user or not was really beside the point. Instead, the question is what was going on at the time of this murder. In the end though, Ms. Smith implied the merits of the Brady claim were inapposite, since in Tennessees view the Brady claim was not properly presented to the Court.

In his rebuttal, Mr. Goldstein sketched what a ruling in Mr. Cones favor could look like. Addressing the dilemma facing the Courtthat the Court normally does not go into the weeds to adjudicate evidentiary claims, but that given the States unapologetic suppression of evidence, it may desire to do so Mr. Goldstein proposed the following disposition: First, reverse the Sixth Circuits wrong conclusion that the claim was procedurally defaulted; second, resolve the Brady claim narrowly, addressing only the most significant points. That, explained Mr. Goldstein, would most effectively resolve the dilemma that Cones appeal raised.