Holding Prosecutors to a Higher Standard Than Constitutionally Required?

Facts of the Case

On August 10, 1980, Gary Cone robbed a jewelry store in Memphis, Tennessee. After a high-speed car chase, Mr. Cone shot and killed a police officer and a bystander. He escaped, and the following day, he gained entry into the home of an elderly couple and beat them to death. While in their home, he bathed and shaved his beard and then fled to Florida, where he was arrested several days later after attempting to rob a drugstore.

Mr. Cone's sole defense was that he was not guilty by reason of insanity. He claimed that he was suffering from chronic amphetamine psychosis resulting from substance abuse that began during his military service in Vietnam. Two defense experts testified that Mr. Cone exhibited symptoms of chronic amphetamine psychosis at the time of the alleged crimes. However, the prosecution discredited the experts' opinions on cross-examination, because these opinions “were based solely on Cone's own representations to them rather than on any independently corroborated sources, such as medical records or interviews with family or friends” (Cone, p 1774).

Mr. Cone was found guilty on all the charges, including two counts of first-degree murder and two counts of murder in the perpetration of a burglary. At sentencing, “the jury could impose a capital sentence only if it unanimously determined that one or more statutory aggravating circumstances had been proved by the state beyond a reasonable doubt, and that the mitigating circumstances of the case did not outweigh any statutory aggravating factors” (Cone, p 1775). The jury voted unanimously for the death penalty.

The threshold issue in this case is whether Mr. Cone's Brady claim was ever heard on the merits by the state courts. Mr. Cone raised a Brady claim on state appeal that was lacking in specificity because, at the time, he did not have the prosecutor's files. In the middle of Mr. Cone's state appeal, another case was decided that interpreted state law in such a way that allowed Mr. Cone access to the prosecutor's files. In the files, Mr. Cone discovered documents that had been withheld from him at trial and that tended to corroborate the testimony by his psychiatric experts. These statements were from witnesses who described Mr. Cone's appearance during and around the time of the crimes as “wild eyed” and his behavior as “real weird.” One witness stated that Mr. Cone appeared “to be drunk or high” (Cone, p 1777). The file also contained a police report in which a police officer described Mr. Cone as looking around “in a frenzied manner” and “walking in an agitated manner” before his arrest as well as police bulletins describing Mr. Cone as a “heavy drug user” (Cone, p 1777).

Mr. Cone amended his state appellate petition after obtaining this new information to strengthen his Brady claim. He argued that his claim was never addressed on the merits by the Tennessee state courts. The Tennessee courts, however, held that Mr. Cone's Brady claims were restatements of previous grounds that had already been denied or that the claims were waived when not raised in the initial appeal. After exhausting his state appeals, Mr. Cone filed a federal habeas corpus case raising his Brady claim. The U.S. district court denied relief on the procedural grounds that Mr. Cone had waived the claim by not presenting it in state court. The Sixth Circuit affirmed, and Mr. Cone sought review by the Supreme Court.

Ruling and Reasoning

The Supreme Court vacated the decision of the Sixth Circuit and remanded the case to the U.S. district court. Preliminarily, it held that federal habeas corpus review is not barred every time a state court invokes a procedural rule to limit a defendant's claims. Deciding that the case could be heard in federal court, the Court then reviewed Mr. Cone's claims on the merits.

The Court concluded that the likelihood that the suppressed evidence would have affected the jury's verdict on the issue of insanity in the guilt phase of the trial was “remote.” On the other hand, the Court concluded that the suppressed evidence “lends support to Mr. Cone's position at trial that he habitually used excessive amounts of drugs, that his addiction affected his behavior during his crime spree, and that the state's arguments to the contrary were false and misleading” (Cone, p 1784). Because the lower courts had not fully considered whether this exculpatory mitigating evidence might have persuaded one or more jurors to choose a life sentence, the Court remanded the case to the U.S. district court to give full consideration to the merits of Mr. Cone's Brady claim regarding mitigation of his sentence.

Dissent

Justices Thomas and Scalia would have affirmed the lower court's decision. They dissented partly on grounds that the suppressed evidence, viewed in context, could easily be consistent with someone who was in an excited state while committing crimes and evading police and might be unrelated to any alleged drug use. In their view, looking “wild eyed” or looking around “in a frenzied manner” did not rise to the level of material evidence that would have changed the mind of any juror to mitigate a capital sentence.

Discussion

In a footnote, the Court cited the ABA Model Rule of Professional Conduct 3.8(d) (2008), which compels a broader obligation from an ethics standpoint for a prosecutor to disclose evidence favorable to the defense. “As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure” (Cone, p 1783).

Justice Roberts in his concurrence specifically noted, “The lower courts should analyze the issue under the constitutional standards … not under whatever standards the American Bar Association may have established” (Cone, p 1787). “The majority's passing citation of [the ABA model rule] should not be taken to suggest otherwise” (Cone, p 1787). The majority opinion of the Court did not further clarify this issue and left unresolved the extent to which courts can grant relief for a prosecutor's failure to abide by this higher ethics-based but not constitutionally mandated standard.

This ruling is relevant to forensic practice. More disclosure by the prosecution may result in more evidence favorable to the defendant's case that the forensic evaluator will have access to for an NGRI evaluation. In the present case, both defense expert opinions were based solely on the defendant's account of his amphetamine use and symptoms of chronic amphetamine psychosis to establish an NGRI defense. This limited source of evidence allowed the prosecution to discredit the reliability of the basis for the opinions.

This case highlights the perils for a forensic expert in basing an evaluation and testimony solely on a party's statements without collateral information and on the importance of pressing to seek any such information from opposing counsel. It is not safe to assume that no such evidence exists or that all such evidence has been properly produced. Prudence dictates, therefore, that the forensic expert should specifically request of counsel any such information and inquire whether there might be collateral information of this type.