Stanford student Josh Friedman discusses oral argument in Cone v. Bell.  Please note that Josh worked on the merits briefing for petitioner as a summer associate at Howe & Russell.

Foreshadowing the course of the argument, Mr. Cone's lead counsel, Thomas C. Goldstein, was just three sentences into his opening when Chief Justice Roberts turned the Court's attention to what would be the central issue of the day"”specifically, whether Cone's petition for certiorari properly presented a merits review of Cone's alleged Brady claim. Indeed, throughout the argument Mr. Goldstein fielded questions centered around the language of the original petition for certiorari and the case's long and complex procedural history. Throughout the discussion, it was clear that among the litigants and Justices there was a "common ground, and that is it's time to bring this all to a close."

From the start, the Court seemed determined to address the specific remedy sought by petitioner Cone. Mr. Goldstein did not state explicitly whether the Court had to reach the Brady claim in order to end this dispute. Instead, responding to a question from Justice Alito whether Cone was asking the Court to "reverse on the procedural default issue and remand the case," Mr. Goldstein answered affirmatively, explaining that "if the Court believes that the Sixth Circuit has reached the merits, then this Court should address . . . the undefended . .. legal errors in its assessment of the merits."

Focus soon shifted from the proper remedy to the claims Mr. Cone raised below. Justice Alito and Justice Scalia expressed concern that in light of the large number of claims"”51, by Justice Ginsburg's count"”it would only be possible to give what Justice Scalia characterized as a "a lick and a promise" to at least a few. Mr. Goldstein agreed, but explained that the Brady claim was not merely tucked away among 50 other claims: "The Brady claim was point 3 . . . my point is not so that the State, you know, inexplicably behaved horribly . . . . What I'm saying here, though, is that the petitioner right away presented what is a very serious Brady claim to the State courts." Cone then "didn't abandon [his Brady claim]; he fully presented it; and what he wants is one shot." Mr. Goldstein emphasized that in light of inconsistent State court reasoning and "passing observations" by the Sixth Circuit, Mr. Cone has never received that opportunity.

Speaking on behalf of the State of Tennessee, Deputy Attorney General Jennifer L. Smith began her argument by disputing that Mr. Cone had never received resolution on his Brady claim. To the contrary, she explained, "both the district court and the Sixth Circuit now have twice . . . rejected Cone's Brady claim on the merits." Justice Stevens, voicing his colleagues' earlier concern as to the proper scope of the question presented, engaged Ms. Smith on the merits of the Brady claim almost immediately. Pointedly, he asked, "Do you agree that the evidence shows that the evidence was deliberately suppressed?" Ms. Smith conceded that neither the district court nor the Sixth Circuit had answered that question explicitly, but noted, "there is at least a suggestion in the record that some of the evidence on which Petitioner is relying at this point wasn't actually suppressed." Justice Breyer spoke next, wondering how the Court should understand the failure to turn over the information. Perhaps, he asked, it "was overlooked by accident?" Justice Kennedy inquired whether it was possible the evidence was simply immaterial, which led the Court into a discussion with Ms. Smith about whether thepProsecution had an ethical obligation to turn over the disputed material.

The argument's most dramatic moment came shortly thereafter, when Justice Souter asked if the evidence would have been favorable to Mr. Cone. Ms. Smith replied, "I think it added no more than"”than what was already before the jury," and added that the evidence would not have a tendency to favor the defendant. Ending their colloquy, Justice Souter responded, "I will be candid with you that I simply cannot follow your argument because I believe you just made a statement to me that is utterly irrational."

Shortly thereafter, the Court's attention turned from the relevance and favorability of the Brady evidence to a series of questions about the grounds on which State courts decided the Brady claim. She explained that, in her estimation, until 2007 the lower courts proceeded as though the Brady claim had been waived. She continued that the recent suggestion that the courts thought the issue was "previously determined" stemmed only from a "red herring" found in a dissenting opinion. And, in regard to the State's representation to the Court, Ms. Smith argued that Tennessee "has consistently maintained . . . that the Brady claim was either defaulted or waived." Prompted by Justice Ginsburg, Ms. Smith set forth the State's theory of how the current situation had arisen: "the bottom line is that [Cone] failed to demonstrate to the State courts why he . . . was properly before the court to begin with." She continued, "[I]f he had a legitimate claim, he certainly didn't highlight it as such."

At the close of her argument, the Court returned once again to the merits of the Brady argument itself. Ms. Smith took issue with Cone's argument that the lower courts had not properly analyzed the Brady material under a cumulative approach, as required by Kyles v. Whitney. She conceded, however, that the prosecutor "overstated his case" on one point"”specifically, in regards to the extent and ramifications of Cone's drug use. By the State's estimation, however, "the question of whether he was a drug user or not was really beside the point." Instead, "the question is what was going on at the time of this murder." In the end though, Ms. Smith implied the merits of the Brady claim were inapposite, since in Tennessee's view the Brady claim was not properly presented to the Court.

In his rebuttal, Mr. Goldstein sketched what a ruling in Mr. Cone's favor could look like. Addressing the "dilemma" facing the Court"”that the Court normally does not go "into the weeds" to adjudicate evidentiary claims, but that given the State's unapologetic suppression of evidence, it may desire to do so"” Mr. Goldstein proposed the following disposition: First, reverse the Sixth Circuit's "wrong" conclusion that the claim was procedurally defaulted; second, resolve the Brady claim narrowly, addressing only the most significant points. That, explained Mr. Goldstein, would most effectively resolve the dilemma that Cone's appeal raised.

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