Supreme Court to review Tenn. death penalty case

Adequate defense, role of federal court at issue


MEMPHIS, Tenn. - In graphic detail, prosecutors told jurors in 1982 how Gary Cone beat to death an elderly Tennessee couple after he robbed a jewelry store. The only reasonable punishment, they said, was to sentence Cone to death.

Then came the court-appointed defense lawyer's turn to plead for his client's life. He rose from his chair next to Cone and spoke three words:

"The defense rests."

Jurors didn't take long rendering the punishment: death.

Yesterday, the U.S. Supreme Court took up the 20-year-old case to review two constitutionally significant issues: adequate legal representation for a defendant and the power of federal judges to intervene in state criminal matters. The court isn't expected to rule on it until summer.

Legal analysts say the Cone appeal could affect death penalty appeals across the country and significantly alter the way capital punishment is handled at trial.

The justices are examining the Cone matter on two grounds:

Was the defense attorney's lack of advocacy on behalf of his client so prejudicial to Cone that it violated his constitutional right to the effective assistance of counsel?

Did the federal appeals court that threw out his death sentence last year overstep its authority?

Civil libertarians hope the Supreme Court uses the case to emphasize the requirement that lawyers aggressively defend their clients during trial and the need for a strong, independent federal judiciary to look over the shoulder of their state judicial counterparts.

Attorneys in the Cone case say that one problem is that their client is wholly unsympathetic.

In 1980, Cone, who was then 30, robbed a Memphis jewelry store, taking precious stones worth about $112,000. Trying to escape, he shot and injured a police officer and a man who intervened. He then tried to shoot a motorist to steal a car but ran out of bullets.

He fled to the home of family friends Shipley Todd, 93, and his wife, Cleopatra, 79. When they refused to hide him, he beat them to death. At trial, Cone didn't deny the crime. Instead, he claimed that he was insane due to drug use and his experience as a soldier in Vietnam. The Memphis jury found Cone guilty.

During the sentencing phase, prosecutors presented evidence of Cone's cruelty and asked the jury for the death penalty. Cone's lawyer, however, presented no evidence and made no argument to save his client's life.

"Lawyers can always put the defendant's family on the witness stand pleading for their loved one's life or simply ask the jury to find mercy for the defendant in hopes of convincing one juror to spare his life," said Mike Mears, an anti-death penalty lawyer in Atlanta.

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