Argument Recap: Cone v. Bell
on Dec 17, 2008 at 11:34 am
Stanford student Josh Friedman discusses oral argument in Cone v. Bell.Â 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. Coneâ€™s lead counsel, Thomas C. Goldstein, was just three sentences into his opening when Chief Justice Roberts turned the Courtâ€™s attention to what would be the central issue of the dayâ€”specifically, whether Coneâ€™s petition for certiorari properly presented a merits review of Coneâ€™s alleged Brady claim. Indeed, throughout the argument Mr. Goldstein fielded questions centered around the language of the original petition for certiorari and the caseâ€™s long and complex procedural history. Throughout the discussion, it was clear that among the litigants and Justices there was a â€œcommon ground, and that is itâ€™s time to bring this all to a close.â€
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 â€œreverse on the procedural default issue and remand the case,â€ Mr. Goldstein answered affirmatively, explaining that â€œif 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.â€
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 claimsâ€”51, by Justice Ginsburgâ€™s countâ€”it would only be possible to give what Justice Scalia characterized as a â€œa lick and a promiseâ€ to at least a few. Mr. Goldstein agreed, but explained that the Brady claim was not merely tucked away among 50 other claims: â€œThe Brady claim was point 3 . . . my point is not so that the State, you know, inexplicably behaved horribly . . . . What Iâ€™m saying here, though, is that the petitioner right away presented what is a very serious Brady claim to the State courts.â€ Cone then â€œdidnâ€™t abandon [his Brady claim]; he fully presented it; and what he wants is one shot.â€ Mr. Goldstein emphasized that in light of inconsistent State court reasoning and â€œpassing observationsâ€ 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, â€œboth the district court and the Sixth Circuit now have twice . . . rejected Coneâ€™s Brady claim on the merits.â€ Justice Stevens, voicing his colleaguesâ€™ 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, â€œDo you agree that the evidence shows that the evidence was deliberately suppressed?â€ Ms. Smith conceded that neither the district court nor the Sixth Circuit had answered that question explicitly, but noted, â€œthere is at least a suggestion in the record that some of the evidence on which Petitioner is relying at this point wasnâ€™t actually suppressed.â€ Justice Breyer spoke next, wondering how the Court should understand the failure to turn over the information. Perhaps, he asked, it â€œwas overlooked by accident?â€ 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 argumentâ€™s most dramatic moment came shortly thereafter, when Justice Souter asked if the evidence would have been favorable to Mr. Cone. Ms. Smith replied, â€œI think it added no more thanâ€”than what was already before the jury,â€ and added that the evidence would not have a tendency to favor the defendant. Ending their colloquy, Justice Souter responded, â€œI 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.â€
Shortly thereafter, the Courtâ€™s 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 â€œpreviously determinedâ€ stemmed only from a â€œred herringâ€ found in a dissenting opinion. And, in regard to the Stateâ€™s representation to the Court, Ms. Smith argued that Tennessee â€œhas consistently maintained . . . that the Brady claim was either defaulted or waived.â€ Prompted by Justice Ginsburg, Ms. Smith set forth the Stateâ€™s theory of how the current situation had arisen: â€œthe bottom line is that [Cone] failed to demonstrate to the State courts why he . . . was properly before the court to begin with.â€ She continued, â€œ[I]f he had a legitimate claim, he certainly didnâ€™t highlight it as such.â€
At the close of her argument, the Court returned once again to the merits of the Brady argument itself. Ms. Smith took issue with Coneâ€™s 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 â€œoverstated his caseâ€ on one pointâ€”specifically, in regards to the extent and ramifications of Coneâ€™s drug use. By the Stateâ€™s estimation, however, â€œthe question of whether he was a drug user or not was really beside the point.â€ Instead, â€œthe question is what was going on at the time of this murder.â€ In the end though, Ms. Smith implied the merits of the Brady claim were inapposite, since in Tennesseeâ€™s view the Brady claim was not properly presented to the Court.
In his rebuttal, Mr. Goldstein sketched what a ruling in Mr. Coneâ€™s favor could look like. Addressing the â€œdilemmaâ€ facing the Courtâ€”that the Court normally does not go â€œinto the weedsâ€ to adjudicate evidentiary claims, but that given the Stateâ€™s unapologetic suppression of evidence, it may desire to do soâ€” Mr. Goldstein proposed the following disposition: First, reverse the Sixth Circuitâ€™s â€œwrongâ€ 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 Coneâ€™s appeal raised.