U.S. Supreme Court Rules Gary Cone Deserves New Hearing

Yesterday the U.S. Supreme Court ruled in a 6-3 decision that Tennessee death row inmate Gary Cone deserves a new hearing to determine whether evidence withheld by the prosecution in Shelby County would have changed the jury’s mind about imposing the death sentence.

Cone, a Vietnam veteran, who suffered from combat stress, mental illness, and a drug addiction, claims that he was in an amphetamine psychosis when he killed elderly Memphis couple, Shipley and Cleopatra Todd, while hiding in their home after a robbery of a jewelry store in 1980.

At the time he was tried, prosecutors called his addiction “baloney” and told jurors that Cone was a drug dealer and cold-blooded killer and not an addict. However, the prosecutor withheld information that substantiated Cone’s claims, including police and FBI communications identifying Cone as a drug user and addict and witness statements describing his behavior as “weird” and “wild-eyed.”

Paul Bottei, Cone’s federal public defender, said that Cone first requested access to files from the district attorney’s office in Memphis in 1993. The Supreme Court has twice reinstated Cone’s death sentence on different appeals, but this current issue about his mental state is his strongest claim.

During arguments before the Supreme Court, the justices demonstrated outrage at Tennessee prosecutors for not turning over all the evidence to Cone’s defense attorneys.

“You’re saying that the lawyer, the trained lawyer for the government, who knew this information and knew the defense, just what? Just overlooked it by accident?” Justice Stephen Breyer demanded of Jennifer Smith, representing Tennessee.

Later, Justice David Souter addressed Smith saying, “I believe you have just made a statement to me that is utterly irrational.”

The justices sent the case back to U.S. District Court Judge Jon McCalla to determine whether or not there is a reasonable probability that the withheld evidence would have altered the penalty Cone received.

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After hearing such stories, I must ask the question, “What are the consequences for the prosecutor who withheld this valuable information which could potentially cost Gary Cone his life and has cost taxpayers untold dollars in pursuing appeals to get to the truth?” I thought a prosecutor’s first responsibility is to pursue the truth and to ensure that those who commit crime are held accountable for their crimes, not to get convictions and death sentences at any cost.

The murder of this elderly couple is tragic and reprehensible, and I am sure that there was immense pressure on the district attorneys’ office to pursue the death penalty for Cone. However, it is inexcusable that this prosecutor, an officer of the court, knowingly withheld this evidence from the defense at the trial. How is he/she being held accountable? If you or I lied to the court regardless of our reasons for lying, we could be charged with perjury. Until we start holding everyone involved to the same standards with real consequences, this system will remain as flawed and broken as ever.

Gary Cone’s conviction stands. He has been in prison for nearly 30 years. The question for the courts now is not Cone’s guilt but the tactics by which a sentence of death was secured when other options were available. Such actions are not only unfair to the defendant but to the jury who didn’t have all the facts needed to render their decision, to the court itself, and to all citizens who expect our court officers to follow the law.

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