It has been 27 years since Gary Cone was sentenced to death for murdering an elderly couple. In those years, Cone’s case has been heard by the U.S. Supreme Court three times — in 2002, 2005, and most recently in April 2009.1 (That is almost certainly a record for a criminal defendant.) Although one might think that nearly three decades of litigation is enough, Cone III guarantees yet further proceedings in a case that speaks loudly (and poorly) about our criminal justice system.

Cone’s Crime

On Aug. 10, 1980, Gary Cone robbed a jewelry store in downtown Memphis, Tenn. Fleeing from the scene, he shot at a police officer and a bystander who tried to impede his escape. He then abandoned his car, in which the police recovered stolen property from a prior grocery store robbery and a sizeable quantity of illegal and prescription drugs. Cone attempted to hijack another vehicle. He tried to shoot the driver of that vehicle and also a hovering police helicopter before running out of ammunition. The next afternoon, still on the run, he gained entry to the home of an elderly couple and beat them to death with a blunt instrument. The husband was 93 and the wife 79. The murders were unspeakably brutal. After ransacking the couple’s property, Cone shaved his head, escaped to the airport and flew to Florida, where he was arrested several days later after robbing a drug store.

Indicted for two counts of murder and sundry other crimes, Cone raised an insanity defense. At trial, his counsel portrayed him as suffering from chronic amphetamine psychosis attributable to the trauma that he experienced in Vietnam, where he had earned a Bronze star. In rebuttal, the prosecution sought to discredit Cone’s defense, painting him as a drug seller, not a user, and a calculating criminal. The prosecution noted that Cone had graduated college with honors after returning from Vietnam and had been accepted to law school after scoring in the 96 percentile on the admission test.

The jury convicted Cone on all counts and sentenced him to death. On direct appeal, the Tennessee Supreme Court affirmed his conviction and sentence, and the U.S. Supreme Court denied certiorari. That was in 1984.

‘Cone I’ (2002)

Cone sought state post-conviction relief, raising 51 claims of error. Among them was a claim that his lawyer was ineffective during the sentencing phase of his trial. Counsel, Cone alleged, failed to interview witnesses who could have testified to Cone’s good character prior to his Vietnam experience and to give any final argument in the sentencing phase. The ineffective assistance claim was rejected in the state courts, and the U.S. Supreme Court again denied certiorari.

Cone then petitioned for a federal writ of habeas corpus. The district court denied the writ, but the U.S. Court of Appeals for the Sixth Circuit reversed. It held that Cone’s lawyer was ineffective in waiving his closing argument in the sentencing phase and that the error was so egregious that prejudice could be presumed under the Supreme Court’s 1984 decision in United States v. Cronic.2 The Supreme Court granted the state’s petition and reversed the Sixth Circuit in an 8-to-1 decision.

Writing for the majority, Chief Justice William Rehnquist used Cone’s case to narrow Cronic ‘s scope. The Cronic presumption of prejudice, Chief Justice Rehnquist wrote, applied only where counsel failed entirely to test the prosecution’s case. Because Cone’s claim was not one of total failure, Strickland v. Washington applied, under which Cone had to show that his lawyer’s shortcomings had prejudiced his defense.3 Emphasizing that Strickland requires a reviewing court to indulge a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” the Court found Cone’s lawyer’s conduct reasonable. Only Justice John Paul Stevens dissented from that conclusion.

Cone I is an infamous decision among death penalty opponents. As Justice Stevens demonstrated in his dissent, Cone’s lawyer, John Dice, was no Clarence Darrow.4

Worse still, there is reason to believe that Dice may have been suffering from the beginnings of mental illness. Following the verdict, Dice took to walking the streets of Memphis wearing what he said was his old army uniform and talking of his days in Vietnam. Dice had never been in Vietnam. At a post-conviction hearing, Dice’s answers were often rambling and incoherent. Asked whether his job was to humanize Cone before the jury, he responded: “That’s your view of it…not mine.” And asked why death trials are bifurcated, he replied “God only knows.” Six months after the hearing, Dice committed suicide.

‘Cone II’ (2005)

On remand from Cone I, the Sixth Circuit found another reason to grant the writ. The jury in Cone’s case had found four aggravating circumstances, including that the murders were “especially heinous, atrocious or cruel in that they involved torture or depravity of mind.”5 Citing Godfrey v. Georgia, a 1980 Supreme Court decision, the Sixth Circuit held that that aggravator was unconstitutionally vague.6 The Supreme Court granted certiorari and again reversed, this time in a per curiam decision.

Godfrey was the high point of the Supreme Court’s effort to check standardless discretion in capital sentencing. There, the Court struck down one of Georgia’s statutory aggravating factors—that the offense was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victims­­—on the ground that it failed to provide sufficient guidance to the sentencing jury. Since Godfrey, however, the Court has held that a “heinous, atrocious or cruel” aggravator (what one commentator has called the “standardless standard”) can be constitutional where the state court has given it a narrowing construction.7 Thus, a Florida provision was held constitutional where the Florida courts interpreted it to be “directed at the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”8 Because Tennessee had given its aggravator the same construction as Florida’s, and because Cone’s murders fit the bill, the Sixth Circuit had erred in granting the writ.

‘Cone III’ (2009)

Following the Supreme Court’s second remand, the Sixth Circuit considered yet another of Cone’s claims—that the state had withheld evidence material to his defense. The Sixth Circuit rejected this Brady claim, concluding that it had not been presented to the state courts and therefore was procedurally defaulted.9 Once again, the Supreme Court granted certiorari, and this time it ruled in Cone’s favor.

Writing for the majority, Justice Stevens first found that the Brady claim had been presented to the state courts and thus there was no obstacle to federal review. On the merits, the majority held that “the evidence suppressed at Cone’s trial may have been material to the jury’s assessment of the proper punishment,” and it therefore remanded to the district court for a “full review.”

To understand the Court’s ruling, one must recall that at Cone’s trial the prosecution had discredited Cone’s claim of drug-induced insanity by arguing that he was a dealer not a user. In summation, the prosecutor said: “[t]he only thing we ever had that he used drugs were those drugs in the car and what he told [the expert witnesses].” After Cone’s conviction, his lawyers reviewed the prosecution’s file and found two categories of previously undisclosed materials: (i) statements of witnesses that had observed Cone in the days immediately before and after the murder describing him as “wild eyed,” “weird” and “drunk or high”; and (ii) police bulletins that described Cone as a “heavy drug user.” It was that evidence which the Cone III majority ruled could conceivably have persuaded a jury that drug use had played “a mitigating, though not exculpating, role in the crime.” Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, arguing that the alleged Brady material had “trivial value.”

Justice Thomas may have the better of the argument in Cone III . Cone’s Brady claim was so frail that his lawyers barely mentioned it in their state post-conviction briefs. That Justice Stevens (the sole dissenter in Cone I ) was the author of Cone III is telling. In a sense, Cone III is a “make up” for Cone I, in which Cone’s ineffective assistance of counsel claim was given such short shrift. Cone, who was represented in the Supreme Court by Professors Pamela Karlan and Jeffrey Fisher of the Stanford Law School, may yet get a new sentencing proceeding with the effective assistance of counsel.


The Cone trilogy raises numerous questions about the workings of our criminal justice system, especially in death penalty cases. First, why have death penalty states found it so difficult to provide competent counsel in capital cases? Justice Ruth Bader Ginsburg’s observation that she has “yet to see a death case among the dozens coming to the Supreme Court…in which the defendant was well represented at trial” may be hyperbole, but there are far too many John Dices representing capital defendants.10

Second, how have we allowed federal habeas law to become such a procedural quagmire that years are spent litigating whether claims are procedurally defaulted or exhausted? Academics have long bemoaned the “excessive proceduralism” of habeas law, but legislative reforms have succeeded only in creating an even more intricate maze.11

Third, why do Brady claims proliferate in death cases? When the stakes are high, prosecutors seem prone to err on the side of non-disclosure and not transparency.

Finally, and most importantly, can we administer capital punishment fairly and efficiently? The Cone trilogy suggests that the answer is no. The administration of the death penalty has become so complex and costly, so subject to endless litigation, that it makes a mockery of justice.

Paul Shechtman is a partner at Stillman, Friedman & Shechtman and an adjunct professor at Columbia Law School where he teaches Evidence.


1. The Cone trilogy is: Bell v. Cone, 535 U.S. 685 (2002)(Cone I); Bell v. Cone, 543 U.S. 447 (2005)(Cone II); and Cone v. Bell, —U.S.— (2009)(Cone III).

2. United States v. Cronic, 466 U.S. 648 (1984).

3. Strickland v. Washington, 466 U.S. 668 (1984).

4. Dow, “Bell v. Cone: The Fatal Consequences of Incomplete Failure,” in Death Penalty Stories, Foundation Press 2009, at 411.

5. Tenn. Code Ann. §39-2-203(i)(5). The three other aggravators were: (i) Cone had been convicted of one or more felonies involving the use or threat of violence to a person; (ii) Cone committed the murders for the purpose of preventing a lawful arrest; and (iii) Cone knowingly created a risk of death to two or more persons, other than the victim murdered during the act of murder. The Tennessee Supreme Court set aside the third factor, concluding that Cone’s actions the prior day were not sufficiently close in time to the murders; it found the error harmless.

6. Godfrey v. Georgia, 446 U.S. 420 (1980).

7. Rosen, “The ‘Especially Heinous’ Aggravating Circumstances in Capital Cases—The Standardless Standard,” 64 N. C. L. Rev. 941 (1986).

8. Sochor v. Florida, 504 U.S. 527, 536 (1992). As others have noted, these limiting constructions do little to narrow the class of death-eligible offenders; rather they “appear no less encompassing than the facially vague statutory [provisions]” that they purport to modify. Carol Steiker and Jordan Steiker, “ Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment,” 109 Harv. L. Rev. 335, 373 (1995).

9. Brady v. Maryland, 373 U.S. 83 (1963).

10. 535 U.S. at 719 n.17.

11. See, e.g., J. Steiker, “Confronting the New Face of Excessive Proceduralism,” 1998 U. Chi. Legal F. 315. The principal legislative reform is the 1996 Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.A. §2241, et seq.