Gary B. Cone admitted to the murders, and the only defense he offered at his trial was that he had been in an amphetamine psychosis. Prosecutors worked hard to discredit the defense, calling it “baloney.” Years later, though, it turned out that prosecutors had withheld evidence from Mr. Cone’s lawyers that would have supported his claim.
Jennifer L. Smith, a lawyer in the state attorney general’s office, was vigorous in her defense of the prosecutors’ conduct. She said that they had no legal or ethical obligation to provide the information to the defense and that it would not have mattered anyway.
Justice David H. Souter, who served as the attorney general of New Hampshire early in his career, did not like those answers. “I will be candid with you,” he told Ms. Smith. “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”
After Mr. Cone’s lawyers finally obtained the withheld evidence more than a decade after his conviction, prosecutors gave the courts a series of wildly inconsistent reasons for why Mr. Cone’s conviction and death sentence should not be re-examined in light of the new information. The issue had already been decided, they said. Or it had been presented too late. Or it had never been presented at all.
On this point, Ms. Smith was willing to acknowledge that prosecutors had made missteps. “We have confessed that there was an error by the state,” she said. But she seemed to place some of the blame on Mr. Cone, saying his lawyers had filed unwieldy and confusing papers.
“He buried all his good arguments,” Ms. Smith said of Mr. Cone.
Justice Stephen G. Breyer said Mr. Cone’s briefs had been clear enough.
“Don’t you think,” Justice Breyer asked Ms. Smith, that Mr. Cone was “saying in his briefs: ‘I’ve been getting the runaround. First, they tell me it’s one thing; then they tell me another’?”
Ms. Smith said Mr. Cone had received a full and fair review in the lower courts.
The Supreme Court has twice before considered Mr. Cone’s case. Earlier, the court reversed rulings from the federal appeals court in Cincinnati that had favored Mr. Cone. This time, the appeals court, the United States Court of Appeals for the Sixth Circuit, ruled for the prosecution.
Mr. Cone, a decorated Vietnam War veteran, killed Shipley Todd, 93, and his wife, Cleopatra, 79, in their Memphis home at the end of a two-day crime spree in 1980. “Our defense,” Thomas C. Goldstein, a lawyer for Mr. Cone told the justices, “was amphetamine psychosis brought on by post-traumatic stress disorder from honorable service in Vietnam.”
Police reports and statements from witnesses in the prosecutors’ files supported Mr. Cone’s claim that he had been a heavy drug user, but they were not provided to the defense. Indeed, the trial prosecutor told the jury that Mr. Cone’s claim of drug addiction was “baloney” and that Mr. Cone was “a premeditated, cool, deliberate — and even cowardly, really — murderer.”
Ms. Smith made a concession here, too.
“I think that the prosecutor overstated in that portion of his argument,” she said.
Chief Justice John G. Roberts Jr. suggested that the case had arrived at the Supreme Court under false pretenses.
Indeed, the legal issue before the justices in the case, Cone v. Bell, No. 07-1114, is the technical one of whether and when federal courts are free to reconsider state court rulings in capital cases. But the question actually animating the argument on Tuesday was what should follow from what several of the justices seemed to accept was serious prosecutorial misconduct.
Early in the argument, Justice Antonin Scalia expressed frustration about how long the case has taken and about the number of issues Mr. Cone had pressed in the lower courts. Justice Scalia also said that some of the withheld evidence — indicating, for instance, that Mr. Cone looked agitated at the time of his crimes — could as easily have proved that he had “just committed two brutal murders” as it could have proved that he had been “under the influence of drugs.”
But Justice Scalia appeared to become more sympathetic. He said a withheld witness’s statement that Mr. Cone had appeared “drunk or high” might have helped Mr. Cone at trial and added that the trial prosecutor had been “trying to make the point to the jury that this person doesn’t even use drugs.”
Ms. Smith offered another concession. “The prosecutor overstated his case on that point,” she said. “No question about it.”